THE  PRINCIPLES 


OF 


wto 

INTERNATIONAL    LAW 


BY 


T.    J.    LAWRENCE,   M.A.,  LL.D. 

MKMUKR  OF  THE  INSTITUTE  OF  INTERNATIONAL  LAW 
HONORARY  FELLOW  OF  DOWNING  COLLEGE,  CAMBRIDGE 

RECTOR  OF  UPTON  LOVEL 

READER  IN  INTERNATIONAL  LAW  IN  THE  UNIVERSITY  OF  BRISTOL 

LATE  LECTURER  ON  INTKRNATIONAL  LAW  AT  THE  ROYAL  NAVAL  WAR  COLLEGE 

SOMETIME  PROFESSOR  OF  INTERNATIONAL  LAW  IN  THE  UNIVERSITY  OF  CHICAGO 

AUTHOR  OF  'WAR  AND  NEUTRALITY  IN  THE  FAR  EAST,'  'A  HANDBOOK 

OF  PUBLIC  INTERNATIONAL  LAW,'  ETC. 


FOURTH  EDITION,  REVISED  AND  REWRITTEN 


D.    C.    HEATH   &   CO.,   PUBLISHERS 

BOSTON        NEW  YORK        CHICAGO 


COPYRIGHT,  1895  AND  1910 
BY  T.  J.   LAWRENCE 


ENTERED  AT  STATIONERS'  HALL 

I  A  2 


PREFACE   TO   THE   FOURTH   EDITION 

THE  present  edition  of  this  book  is  practically  a  new  work. 
The  old  title  is  retained,  and  with  it  the  original  divisions  of 
the  subject.  But  much  of  the  old  matter  has  been  replaced 
by  new,  and  the  greater  part  of  the  remainder  has  been  so 
altered  by  rearrangement,  excision,  and  addition,  as  to  be  in 
effect  new.  Here  and  there,  however,  especially  in  the 
earlier  chapters,  a  few  pages  remain  untouched. 

The  book  was  first  published  fifteen  years  ago.  Since  then 
we  have  seen  the  Spanish- American  War,  the  Boer  War,  and 
the  Russo-Japanese  War,  the  two  Hague  Conferences  with 
their  Sixteen  Conventions,  the  revised  Geneva  Convention, 
the  Naval  Conference  with  its  epoch-making  Declaration  of 
London,  the  emergence  of  Japan  as  a  Great  Power  and  of 
Latin  America  as  a  force  to  be  reckoned  with  in  international 
transactions,  the  Pan-American  Congresses  (except  the  first) 
and  the  Central  American  Peace  Conference,  the  revision  of 
the  maps  of  Southern  Africa  and  Eastern  Asia,  the  conver- 
sion of  the  United  States  into  a  maritime  and  colonizing 
power,  the  transformation  of  Turkey  and  the  ferment  in 
India  and  China,  the  readjustment  of  the  balance  of  power 
in  Europe  more  than  once,  and  the  creation  of  a  world-balance 
in  addition.  The  international  jurist  looks  out  on  a  new 
earth,  and  finds  a  new  spirit  abroad  in  it,  or  rather  a  new 
and  more  energetic  manifestation  of  a  spirit  as  old  as  the 
beginnings  of  his  science.  International  Law  was  in  its 
origin  an  attempt  to  impose  some  kind  of  curb  on  the  pas- 
sions of  warriors,  and  substitute  for  brute  force  an  appeal  to 
justice  in  the  mutual  relations  of  states.  And  in  the  last 
few  years  there  has  been  far  greater  progress  toward  these 

iii 


iv  PREFACE   TO  THE  FOURTH   EDITION 

ends  than  has  ever  manifested  itself  before  in  an  equal  space 
of  time. 

The  two  Hague  Conferences  have  given  an  enormous  im- 
pulse to  the  forces  that  make  for  peace.  Among  other 
achievements,  they  have  provided  means  for  calling  into 
existence  Arbitral  Tribunals,  and  regulated  procedure  before 
them.  Already  this  machinery  has  been  used  on  several 
occasions  with  happy  results.  And,  further,  the  hint  given 
in  the  Hague  Convention  for  the  Pacific  Settlement  of  In- 
ternational Disputes,  that  in  default  of  a  general  treaty  of 
arbitration  each  power  might  make  separate  treaties  with  its 
neighbors,  has  been  so  eagerly  taken  that  considerably  more 
than  a  hundred  such  treaties  have  been  negotiated,  and  are 
still  in  force.  This  has  been  done  for  the  prevention  of  war. 
For  the  mitigation  of  it,  and  the  proper  conduct  of  peaceful 
intercourse,  we  have,  in  the  Hague  Conventions  and  other 
documents  accepted  by  the  great  body  of  civilized  states,  a 
statute  book  of  the  law  of  nations.  Authoritative  tribunals 
to  interpret  and  administer  its  rules  are  growing  up  before 
our  eyes.  An  International  Prize  Court  of  Appeal  is  confi- 
dently expected  in  the  immediate  future,  and  a  High  Court 
of  Arbitral  Justice  will  probably  follow  at  no  distant  date. 
If  sanctions  are  needed,  something  resembling  an  interna- 
tional police  force  is  within  the  limits  of  possibility. 

But  side  by  side  with  this  growth  of  the  apparatus  of 
peace  there  has  been  a  simultaneous  growth  of  preparations 
for  war.  So  burdensome  have  they  become  that  the  price 
paid  by  each  nation  for  real  or  fancied  security  tends  to 
depress  industry,  hinders  social  reform,  and  puts  the  means 
of  aggression  into  the  hands  of  any  rulers  who  may  be  disposed 
to  ignore  the  rights  of  others.  There  seems  to  be  no  remedy 
except  the  slow  and  gradual  one  of  so  developing  the  means 
of  pacific  settlement  and  the  disposition  to  use  them  that  the 
world  will  little  by  little  throw  off  its  costly  panoply. 

In  writing  the  following  pages  I  have  endeavored  to  see 
international  life  clearly  and  see  it  whole.  Those  who  regard 


PREFACE  TO  THE   FOURTH  EDITION  V 

it  as  an  exemplification  of  the  law  of  the  beasts  can  find 
numerous  cases  to  support  the  conclusion  in  which,  strange 
to  say,  they  seem  to  glory.  On  the  other  hand,  the  enthu- 
siasts of  peace  and  good  will  can  point  to  much  in  it  that 
shows  a  marked  capacity  for  the  exercise  of  the  social  virtues. 
But  each  side  seems  to  me  to  fall  into  the  error  of  passing 
too  lightly  over  the  facts  which  militate  against  its  views. 
I  have  tried  to  look  at  both  sides  of  the  shield  and  give  my 
readers  the  means  of  forming  their  own  conclusions.  At  the 
same  time,  I  have  indicated  my  belief  that  the  period  of  rapid 
development  through  which  we  are  now  passing  may  end, 
if  those  who  stand  for  righteousness  among  the  nations  are 
at  once  sane  in  their  aims  and  earnest  in  their  endeavors,  in 
the  establishment  of  an  organized  international  society,  with 
legislative,  executive,  and  judicial  organs.  Were  this  once 
done,  war  would  in  time  become  as  abnormal  and  infrequent 
as  rebellion. 

Meanwhile  it  is  the  business  of  an  expositor  of  the  jus  gen- 
tium to  fit  the  rules  of  recent  law-making  documents  into 
their  proper  places  among  the  principles  and  customary  pre- 
cepts which  till  recently  formed  the  staple  of  the  subject  and 
must  still  be  used  to  explain  and  supplement  the  new  mate- 
rial. The  attempt  to  perform  this  task,  and  also  to  set 
forth  the  recent  changes  in  the  international  order,  has  in- 
volved no  small  labor.  The  documents  to  be  consulted  are 
voluminous,  and  the  commentaries  on  them  are  still  more  so. 
Versions  of  the  Hague  Conventions  have  been  published  in 
various  languages  ;  but  to  none  am  I  so  deeply  indebted  as 
to  The  Hague  Peace  Conferences  of  Dr.  A.  P.  Higgins,  whose 
work  as  a  teacher  at  Cambridge,  at  the  London  School  of 
Economics,  and  at  the  Royal  Naval  War  College,  has  given 
to  his  learned  expositions  a  point  and  aptness  which  add 
greatly  to  their  value.  In  order  to  carry  out  my  object, 
I  was  obliged  to  pull  to  pieces,  as  it  were,  the  Hague  Con- 
ventions and  other  documents,  and  rearrange  their  contents 
under  the  heads  into  which  International  Law  seems  to  me 


VI  PREFACE   TO   THE   FOURTH   EDITION 

to  be  best  divided.  The  Short  Convention  IX  of  1907,  for 
instance,  is  laid  under  contribution  in  no  less  than  five  of 
my  chapters. 

During  the  ten  eventful  years  which  have  elapsed  since 
the  last  edition  of  this  work  was  published  I  have  altered 
some  views  and  modified  others.  But  my  general  attitude 
remains  the  same ;  and  I  trust  that  those  who  gave  a  kindly 
welcome  to  the  book  in  its  earlier  form  will  find  no  reason 
to  change  their  opinion  now.  As  before,  I  have  tried  to 
present  a  connected  narrative  and  give  to  my  account  of 
matters  usually  deemed  inimical  to  style  a  certain  amount 
of  clearness  and  literary  form.  I  have  had  the  inestimable 
advantage  of  personal  intercourse  with  some  of  those  who 
were  concerned  in  making  many  of  the  events  and  rules  I 
record.  To  them,  and  to  all  whose  works  I  consulted  or 
whose  information  was  otherwise  placed  at  my  disposal,  I 
tender  my  grateful  thanks. 

T.  J.  LAWRENCE. 

UPTON  LOVEL  RECTORY,  ENGLAND 
August  9,  1910. 


NOTE.  —  The  issue  of  a  second  impression  of  the  text  has 
enabled  me  to  introduce  brief  references  to  the  annexation 
of  Korea  by  Japan,  the  progress  of  events  in  the  Belgian 
Congo,  the  Atlantic  Fisheries  Award,  the  agreement  to  sus- 
pend pelagic  sealing  for  fifteen  years,  and  the  prospect 
of  agreements  for  unrestricted  arbitration  between  Great 
Britain  and  the  United  States,  and  possibly  other  powers 
as  well.  I  have  also  been  able  to  remedy  an  omission  with 
regard  to  the  Hague  Convention  limiting  the  use  of  force 
for  the  recovery  of  contract  debts,  and  to  make  a  few 
other  alterations  which  will,  I  hope,  render  the  book  more 
complete. 

T.  J.  L. 

July,  1911. 


PREFACE   TO   THE   FIRST   EDITION 

INTERNATIONAL  LAW  may  be  regarded  as  a  living  or- 
ganism, which  grows  with  the  growth  of  experience  and  is 
shaped  in  the  last  resort  by  the  ideas  and  aspirations  current 
among  civilized  mankind.  He  who  would  accurately  de- 
scribe its  present  condition  must  sketch  the  outlines  of  its 
past  history  and  gauge  the  strength  of  the  forces  which  are 
even  now  acting  upon  it.  He  must  understand  the  processes 
whereby  it  reached  the  shape  in  which  we  see  it  and  forecast 
the  changes  which  will  accompany  its  future  growth.  The 
perfect  publicist  must  take  all  philosophy,  all  history,  and  all 
diplomacy  to  be  his  province.  He  must  weigh  in  the  balance 
of  absolute  impartiality  the  actions  of  statesmen  and  the 
decisions  of  judges.  He  must  be  familiar  in  equal  degree 
with  the  rough  amenities  of  camps  and  the  stately  etiquette 
of  courts.  I  lay  no  claim  to  the  possession  of  these  exalted 
qualifications.  I  have  but  attempted  to  trace  the  develop- 
ment of  International  Law  in  such  a  way  as  to  show  on  the 
one  hand  its  relation  to  a  few  great  ethical  principles  and  on 
the  other  its  dependence  upon  the  hard  facts  of  history.  The 
severest  critic  cannot  be  more  sensible  than  I  am  of  the  de- 
ficiencies of  my  work.  They  are  due  partly  to  the  greatness 
of  the  task  compared  with  the  powers  of  the  doer,  and  partly 
to  untoward  circumstances  of  change  and  unrest  which  ham- 
pered its  progress  from  beginning  to  end.  I  shall  be  more 
than  satisfied  if  I  have  succeeded  in  placing  before  students 
of  political  science  a  clear  and  readable  outline  of  one  of  the 
most  important  branches  of  their  subject. 

The  book  is  divided  into  four  parts.  The  first  deals  with 
the  nature  and  history  of  International  Law,  and  in  the  order 


viii  PREFACE  TO   THE   FIRST  EDITION 

of  thought  precedes  the  others,  which  set  forth  the  rules 
observed  among  states  during  peace,  war,  and  neutrality. 
But  nevertheless  it  will  be  wise  to  leave  a  careful  study  of  the 
questions  discussed  in  the  first  three  chapters  till  the  rest  of 
the  work  has  been  mastered.  Some  knowledge  of  the  usages 
of  international  society  is  necessary  before  the  student  is  in 
a  position  to  appreciate  the  tendencies  of  opposing  schools  of 
thought  among  publicists.  Nor  need  any  inconvenience  arise 
from  this  mode  of  procedure ;  for  nothing  is  easier  than  to 
turn  back  at  the  end  of  a  book  and  read  again  with  an  edu- 
cated eye  the  early  pages,  whose  discussions  on  definition  and 
method  puzzled  the  mind  not  yet  familiar  with  the  subject  of 
which  they  treat.  I  have  striven  throughout  to  avoid  unnec- 
essary controversy.  When  I  have  been  obliged  to  wrestle 
with  philosophical  problems  or  historical  puzzles,  I  have 
endeavored  to  avoid  the  reproach  of  mistaking  obscurity  for 
profundity.  But  on  the  other  hand  I  have  recognized  that 
difficulties  are  not  overcome  when  they  are  shirked,  and  my 
aim  has  always  been  to  bring  to  bear  upon  them  the  best 
resources  at  my  disposal.  If  I  have  failed,  the  fault  is  due 
not  to  inability  to  see  the  mark,  but  to  lack  of  power  to 
hit  it. 

In  a  work  written  in  English,  and  intended  in  the  main 
for  British  and  American  readers,  it  is  natural  that  most  of 
the  cases  should  be  taken  from  British  and  American  history. 
I  have  so  taken  mine  of  set  purpose.  The  more  the  two 
great  English-speaking  peoples  know  of  each  other  the  better 
friends  they  will  be ;  and  on  their  friendly  cooperation 
depend  the  fairest  hopes  for  the  future  of  humanity.  No 
one  who  has  taught,  as  I  have  taught,  on  both  sides  of  the 
Atlantic,  can  have  failed  to  notice  that  the  influence  of  old 
controversies  and  misunderstandings  has  not  entirely  passed 
away,  even  among  the  educated  classes.  I  have  approached 
these  questions  with  a  sincere  desire  to  show  to  each  side 
the  strength  of  the  other's  case  and  deal  out  impartial  justice 
on  every  occasion.  If  I  have  ever  inclined  the  balance  too 


PREFACE   TO   THE   FIRST   EDITION  IX 

much  in  favor  of  my  own  country,  the  error  is  that  of  one 
who,  were  he  not  an  Englishman,  would  ask  no  better  fate 
than  to  be  an  American. 

The  story  I  have  to  tell  will  be  found  in  the  text.  I  have 
not  relegated  important  matter  to  notes,  nor  printed  on  my 
pages  long  quotations  from  other  authors  or  excerpts  from 
original  authorities.  I  have  preferred  the  much  more  labo- 
rious task  of  extracting  their  substance  and  putting  it  in  my 
own  words  into  the  body  of  the  book,  which  I  trust,  has 
gained  thereby  in  decrease  of  bulk  and  increase  of  readable- 
riess.  But  I  have  taken  care  to  provide  the  means  of  check- 
ing my  assertions.  At  the  bottom  of  nearly  every  page  will 
be  found  references,  by  the  use  of  which  teachers  and  stu- 
dents can  amplify  or  correct  the  statements  in  the  text  and 
men  of  affairs  obtain  the  more  detailed  information  they  may 
want  for  practical  purposes.  The  notes  are,  I  hope,  sufficient. 
My  object  has  been  to  make  them  adequate  without  over- 
loading them  with  matter.  I  have  not,  for  instance,  referred 
to  a  large  number  of  writers  of  all  degrees  of  authority,  when 
the  citation  of  a  few  great  ones  gave  the  necessary  support 
to  my  argument ;  nor  have  I  quoted  a  dozen  cases,  when  one 
or  two  were  enough.  I  have  also  taken  care  that  most  of 
the  cases  given  in  the  text  should  be  something  more  than 
mere  names  to  my  readers.  The  material  facts  are  almost 
always  described,  so  that  the  points  of  law  may  be  seen  in 
relation  to  the  actual  circumstances  which  were  before  the 
courts.  The  table  of  contents  has  been  so  arranged  as  to 
afford  an  analysis  of  the  whole  book. 

The  writer  of  every  new  work  on  International  Law  is  the 
debtor  of  all  who  have  gone  before  him  in  his  particular 
sphere.  His  best  acknowledgments  are  to  be  found  in  his 
references  and  quotations.  The  extent  of  my  own  obliga- 
tions to  others  may  be  roughly  measured  by  the  frequency 
with  which  their  names  occur  in  my  notes;  but  I  cannot 
refrain  from  making  special  mention  of  two.  I  have  been 
helped  at  every  turn  by  the  robust  judgment  and  incisive 


X  PREFACE  TO   THE   FIRST  EDITION 

arguments  of  Mr.  R.  H.  Dana,  and  the  judicial  reasoning  and 
encyclopedic  knowledge  of  Mr.  W.  E.  Hall.  Both  have 
joined  the  majority,  not  indeed  too  soon  for  fame,  but  too 
soon  for  the  expectations  of  those  who  profited  by  their 
labors.  Mr.  Hall  was  taken  from  us  in  the  zenith  of  his 
powers,  and  Mr.  Dana  had  collected  the  materials  for  what 
I  venture  to  think  would  have  been  the  best  of  all  books  on 
International  Law,  had  he  lived  to  write  it.  To  the  mem- 
ory of  both  I  offer  my  humble  tribute  of  reverence  and 
admiration. 

T.  J.  LAWRENCE. 
July  24,  1895. 


TABLE  OF  CONTENTS 
PART  I 

INTRODUCTORY 

CHAPTER   I 

THE  DEFINITION  AND  NATURE  OF  INTERNATIONAL  LAW 
SECTION  PAGB 

1.  The  definition  of  International  Law.     Difficulty  of  making  it  quite 

satisfactory .1 

2.  The  precepts  of  International  Law  are  rules,  whether  they  are  or 

are  not  laws        .        .         .        .        .        .        .        .  •     .        2 

3.  International  Law  is  generally  observed  by  states,  though  here 

and  there  some  of  its  commands  are  disregarded        .        .        2 

4.  International  Law  applies  to  civilized  states  only,  though  it  is  not 

confined  to  Christian  states 3 

5.  International  Law  regulates  the  conduct  of  states  in  their  mutual 

dealings,  hostile  as  well  as  pacific 4 

6.  International  Law  includes  the  rules  of  maritime  capture,  but  not 

the  rules  for  determining  which  of  two  conflicting  systems 

of  law  shall  prevail  in  matters  of  private  right    ...        5 

7.  The  history  of  the  names  given  to'  the  science         ....        6 

8.  The    two    problems :  —  (a)    Is   International   Law  really    law  ? 

(6)   Are  its  principles  and  rules  derived  from  intuition 

or  experience  ?   .        .        .        .        .  .        .        .        8 

9.  Is  International  Law  really  law  ? 9 

10.  Does  International  Law  proceed  by  the  a  priori  or  by  the  historical 

method? 11 

11.  The  place  of  ethical  considerations  in  International  Law        .        .       13 

12.  Summary  of  results  attained  in  this  chapter 16 

CHAPTER  II 
THE  HISTORY  OF  INTERNATIONAL  LAW 

13.  The  history  of  International  Law  may  be  divided  into  three 

periods 17 


xii  CONTENTS 

8XCTION  PAGK 

14.  In  the  First  Period  —  from  the  earliest  times  to  the  Roman  Empire 
—  states  as  such  had  no  mutual  rights  and  duties.  Kinship 
was  the  basis  of  the  relations  between  Hellenic  communities  17 

16.   Republican  Rome  possessed  no  true  International  Law   ...      19 

16.  In  the  Second  Period  —  from  the  Roman  Empire  to  the  Reforma- 

tion —  it  was  deemed  that  the  relations  of  states  must  be 
regulated  by  a  common  superior.  For  a  long  time  the 
Roman  Emperor  was  such  a  superior  ....  20 

17.  The  Holy  Roman  Empire  and  the  Papacy  claimed  universal  author- 

ity during  the  Middle  Ages 22 

18.  The  idea  of  a  common  superior  died  out  at  the  Reformation  .        .      23 

19.  For  a  time  there  was  great  danger  of  utter  lawlessness  in  inter- 

national affairs 24 

20.  Influences  which  made  for  improvement  during  the  Middle  Ages    .       25 

21.  In  the  Third  Period  —  from  the  Reformation  to  the  present  time  — 

the  ruling  principle  is  that  states  are  units  in  a  great 
society,  the  members  of  which  have  mutual  rights  and 
obligations 28 

22.  The  career  of  Grotius,  the  great  agent  in  effecting  this  change  in 

ideas 30 

23.  The  causes  of  the  influence  exercised  by  Grotius      ....  32 

24.  The  Law  of  Nature  as  conceived  by  Grotius 33 

25.  The  theory  of  a  Law  of  Nature  criticised          .....  35 

26.  Its  effect  in  obtaining  acceptance  for  an  improved  International 

Law .37 

27.  The  Grotian  system  contained  a  second  principle  which  supported 

it  when  the  first  failed         .......      38 

28.  Two  senses  of  jus  gentium 38 

29.  The  growing  recognition  of  the  fact  that  International  Law  rests  on 

the  consent  of  nations         .        .        .        .        .        .        .40 

30.  The  growth  of  the  consensual  theory 42 

31.  The  development  of  a  statute  book  of  the  law  of  nations         .        .      46 

82.    The  rudiments  of  an  international  legislature 47 

33.   The  possibilities  of  the  future 51 


CHAPTER  III 
THE  SUBJECTS  OF  INTERNATIOKAL  LAW 

34.  There  are  grades  among  the  subjects  of  International  Law     .        .64 

35.  Sovereign  states 65 

36.  Some  amount  of  civilization,  territory,  and  importance  necessary 

before  a  sovereign  state  can  be  regarded  as  a  subject  of 
International  Law  ...      67 


CONTENTS 

SECTION  PAGE 

37.  The  kinds  of  fully  sovereign  international  persons          ...  58 

38.  Part-sovereign  states 61 

39.  Client  states             .   ,     .                 63 

40.  Confederations 68 

41.  Civilized  belligerent  communities  not  being  states  .         .  70 

42.  The  doubtful  cases  of  individuals  and  corporations         ...  72 

43.  Anomalous  cases  —  Colonial    Protectorates,    Neutralized    States, 

Egypt,  the  Papacy 76 

44.  Admission  into  international  society :  States  hitherto  deemed  alien 

in  civilization  and  ideas      . 83 

45.  States  formed  by  civilized  men  in  hitherto  uncivilized  countries  84 

46.  States  whose  independence  is  recognized  in  consequence  of  sep- 

aration from  some  other  state .87 

47.  The  various  methods  of  recognition  of  independence      ...  89 

48.  Continuity  of  state  life 90 

49.  State  succession 92 

CHAPTER  IV 
THE  SOURCES  AND  DIVISIONS  OF  INTERNATIONAL  LAW 

60.     The  meaning  of  the  phrase,  The  sources  of  International  Law       .  97 

51.           (1)  The  works  of  great  publicists       ......  98 

62.  (2)  Treaties 101 

63.  (3)  Decisions  of  prize  courts,  international  conferences,  and 

arbitral  tribunals         ........  108 

54.           (4)  State-papers  other  than  treaties Ill 

65.  (5)  Instructions  issued  by  states  for  the  guidance  of  their  own 

officers  and  tribunals 112 

66.  Divisions  of  International  Law.     The  old  divisions  useless    .        .  114 

67.  Normal  rights  and  obligations  are  connected  with  indepen- 

dence, property,   jurisdiction,   equality,   and  diplomacy. 
Abnormal  rights  and  obligations  are  connected  with  war 

and  neutrality 116 


PART  II 

THE  LAW  OF  PEACE 

CHAPTER  I 
RIGHTS  AND  OBLIGATIONS  CONNECTED  WITH  INDEPENDENCE 

68.  Definition  and  nature  of  the  right  of  independence        .        .        .119 

69.  Part-sovereign  states  not  fully  independent 120 


XIV  CONTENTS 

8KCTION  PACK 

60.  Voluntary  restrictions  upon  the  freedom  of  action  of  sovereign 

states 121 

61.  Involuntary  restrictions  upon  the  freedom  of  action  of  sovereign 

states 122 

62.  Intervention  —  Its  essential  characteristics 123 

63.  General  considerations  with  regard  to  intervention         .        .        .  125 

64.  Intervention  in  pursuance  of  a  legal  right  to  intervene     .        .  125 

65.  Interventions  for  which  no  strict  legal  right  can  be  claimed.  — 

Those  based  on  the  necessity  of  self-protection  .         .        .  127 

66.  Intervention  upon  the  ground  of  humanity       ....  128 

67.  Intervention  for  the  preservation  of  the  balance  of  power        .  130 

68.  Inadmissible  grounds  of  intervention      ......  134 

69.  Various  conclusions  concerning  intervention 135 

70.  The  doctrine  of  non-intervention 137 


CHAPTER  II 
RIGHTS  AND  OBLIGATIONS  CONNECTED  WITH  PKOPEHTT 

71.  States  are  political  units  capable  of  holding  both  territorial  and 

non-territorial  possessions  .         .        .        .        «        .        .  139 

72.  The  extent  of  a  state's  territorial  possessions 140 

73.  Is  the  air  above  a  state  a  part  of  its  territory  ?  146 

74.  Modes  of  acquiring  territory:  —  (1)  Occupation     .        .        .        .  147 

75.  Modes  of  acquiring  territory :  —  (2)  Accretion       ....  162 

76.  Modes  of  acquiring  territory  : — (3)  Cession 162 

77.  Modes  of  acquiring  territory :  —  (4)  Conquest        ....  164 

78.  Modes  of  acquiring  territory  :  —  (5)  Prescription   ....  166 

79.  A  state  may  exercise  power  over  territory  as  (1)  A  part  of  its 

dominions 167 

80.  A  state  may  exercise  power  over  territory  as  (2)  A  protectorate   .  168 

81.  A  state  may  exercise  power  over  territory  as  (3)  A  sphere  of 

influence     ....         ......  173 

82.  A  state  may  exercise  power  over  (4)  A  leased  territory         .        .  175 

83.  Less  important  modes  of  exercising  power  over  territory        .        .  179 

84.  Chartered  companies  and  pioneer  work 183 

85.  Rights  over  waters.     (1)  Claims  to  sovereignty  over  the  high  seas  185 

86.  (2)  The  American  claim  to  prohibit  seal-fishing  in  Bering  Sea .  187 

87.  (3)  Claims  to  jurisdiction  beyond  the  marine  league         .        .  192 

88.  (4)  The  right  of  innocent  passage 194 

89.  (5)  The  special  case  of  the  Dardanelles  and  the  Bosphorus      .  196 

90.  (6)  The  position  in  International  Law  of  interoceanic  canals  .  198 

91.  (7)  The  use  of  sea  fisheries        .        .        .        i  ;>:,...  202 

92.  (8)  The  navigation  of  great;  arterial  rivers         .        ,        .        .  207 


CONTENTS  XV 

CHAPTER   III 
RIGHTS  AND  OBLIGATIONS  CONNECTED  WITH  JURISDICTION 

SECTION  PAGE 

93.  A  state  has  jurisdiction  over  all  persons  and  things  within  its 

territory,  with  a  few  exceptions 212 

94.  Natural-born  subjects 212 

95.  Naturalized  subjects 215 

96.  International  questions  connected  with  naturalization    .         .  217 

97.  Domiciled  aliens       .        .        .        .,       .        .        .        .        .  222 

98.  .     Travellers  passing  through  its  territory 224 

99.  Rules  relating  to  various  kinds  of  things  within  the  territory  .  225 

100.  A  state  has  jurisdiction  over  all  its  ships  on  the  high  seas     .        .  228 

101.  A  state  has  jurisdiction  over  its  subjects  abroad    ....  231 

102.  A  state  has  jurisdiction  over  all  pirates  seized  by  its  vessels  .         .  232 

103.  Distinction  between  piracy   by  the   law  of  nations  and  piracy 

by  municipal  law.    The  slave  trade 237 

104.  The  claim  to  jurisdiction  over  foreigners  for  offences  committed 

abroad 242 

105.  Exceptions  to  ordinary  rules  about  jurisdiction:  —  (1)  Foreign 

sovereigns  and  their  suites 244 

106.  Exceptions  to  ordinary  rules  about  jurisdiction  :  —  (2)  Diplomatic 

agents  of  foreign  states      .......  245 

107.  Exceptions  to  ordinary  rules  about  jurisdiction  :  —  (3)  Public 

armed  forces  of  foreign  states 245 

108.  The  case  of  political  offenders  and  fugitive  slaves    .        .         .  250 

109.  Exceptions  to  ordinary  rules  about  jurisdiction :  —  (4)  Subjects 

of  Western  states  resident  in  Eastern  countries       .         .  253 

110.  Extradition.     A  state  is  not  bound  to  grant  it  in  the  absence  of  a 

treaty  obliging  it  to  do  so 258 

111.  The  conditions  generally  inserted  in  extradition  treaties      .        .  260 


CHAPTER  IV 
RIGHTS  AND  OBLIGATIONS  CONNECTED  WITH  EQUALITY 

112.  The  meaning  and  utility  of  the  principle  of  equality     .         .        .  268 

113.  Facts  hard  to  reconcile  with  the  principle  of  equality  .        .         .  268 

114.  The  present  a  period  of  transition 275 

116.     The  state-system  of  the  American  continent         ....  279 

116.  The  Pan-American  movement 285 

117.  Matters  of  ceremony  and  etiquette  connected  with  the  doctrine 

of  equality 288 

118.  Rules  of  precedence  for  states  and  their  representatives  .         .  290 

1 19.  Titles  and  their  recognition  by  other  states     ....  292 

120.  Maritime  ceremonials  .        .        .  293 


XVI  CONTENTS 

CHAPTER  V 
RIGHTS  AND  OBLIGATIONS  CONNECTED  WITH  DIPLOMACY 

SECTION 

121.  Diplomatic  intercourse  necessary.     Growth  of  resident  embassies 

122.  Development  of  different  kinds  of  diplomatic  ministers 

123.  Classification  of  diplomatic  ministers 

124.  Sovereign  states  possess  the  right  of  legation  fully,  part-sovereign 

states  to  a  limited  extent 

126.    The  rupture  of  diplomatic  relations  is  a  serious  step,  which  gen- 
erally ends  in  war 

126.  A  state  may  without  offence  refuse  on  good  grounds  to  receive  a 

particular  individual,  or  ask  for  his  recall  .... 

127.  The  commencement  and  termination  of  diplomatic  missions  and 

the  ceremonies  connected  therewith  .... 

128.  Diplomatic  immunities  —  their  general  nature  and  the  reasons  for 

their  existence     ......... 

129.  Immunities  connected  with  the  person  of  the  diplomatic  agent    . 

130.  Immunities  connected  with  the  property  of  the  diplomatic  agent . 

131.  Consuls  —  their  position  and  immunities       .        .        .        .        . 

132.  The  treaty-making  power.     Ratification  of  treaties 

133.  The  interpretation  of  treaties 

134.  The  obligation  of  treaties 


PART  III 

THE  LAW  OF  WAR 

CHAPTER  I 
THE  DEFINITION  OF  WAB  AND  OTHER  PRELIMINARY  POINTS 

135.  The  nature  and  definition  of  war 331 

136.  Reprisals,  or  modes  of  putting  stress  upon  a  state  by  violence 

which  is  not  held  to  amount  to  open  war  ....  334 

137.  Embargo 337 

138.  Pacific  blockade 338 

139.  The  value  and  admissibility  of  reprisals 343 

140.  Declarations  of  war        .  345 

141.  The  meaning  and  effects  of  recognition  of  belligerency         .        .  351 

142.  Recognition  of  insurgency 354 

143.  The  immediate  legal  effects  of  the  outbreak  of  war       .        .         .  356 

144.  The  effect  of  war  upon  treaties  to  which  the  belligerents  and 

powers  other  than  the  belligerents  are  parties  .        .        .    360 


CONTENTS  XV11 

SECTION  PAGE 

145.  The  effect  of  war  upon  treaties  to  which  the  belligerents  only  are 

parties -    .  »        .        .        .        .362 

146.  Table  showing  the  effect  of  war  on  treaties  to  which  the  belliger- 

ents are  parties 365 


CHAPTER  II 
THE  ACQUISITION  BY  PERSONS  AND  PROPERTY  OF  ENEMY  CHARACTER 

147.  Enemy  character,  and  the  extent  to  which  individuals  possess  it .  366 

148.  (1)  Persons  enrolled  in  the  enemy's  fighting  forces         .         .  366 

149.  (2)  Crews  of  the  enemy's  merchant  vessels      ....  369 

150.  (3)  Those  who  follow  an  army  without  directly  belonging 

to  it 370 

161.  (4)  Persons  living  in  an  enemy  country 371 

152.  (5)  Residents  in  places  occupied  by  the  forces  of  the  enemy  374 

153.  (6)  Neutrals  having  houses  of  trade  in  the  enemy's  country   .  375 

154.  British  and  American  theory  of  domicile  in  relation  to  questions 

of  belligerent  capture          .......  376 

155.  Enemy  character  and  the  extent  to  which  property  possesses  it    .  379 

(1)  Property  belonging  to  the  enemy  state       ....  379 

156.  (2)  Property  belonging  to  subjects  of  the  enemy  state     .        .  380 

157.  (3)  Neutral  property  incorporated  in  enemy  commerce  or 

subject  to  enemy  control 382 

158.  (4)  Produce  of  estates  owned  by  neutrals  in  places  under 

enemy  control,  while  it  belongs  to  the  owner  of  the 

soil 384 

159.  Summary  of  the  circumstances  under  which  enemy  character  is 

acquired  by  property 385 


CHAPTER  III 
THE  LAWS  OF  WAR  WITH  REGARD  TO  ENEMY  PERSONS 

160.  The  treatment  accorded  to  enemy  subjects  found  in  a  state  at 

the  outbreak  of  war '     .        .  387 

161.  Ancient  and  modern  ideas  of  the  violence  permissible  in  war       .  390 

162.  Modern  military  codes 392 

163.  Treatment  of  combatants.     (1)  The  grant  of  quarter  .        .        .395 

164.  (2)  The  treatment  of  prisoners  of  war 397 

165.  (3)  The  care  of  the  sick,  wounded,  and  shipwrecked     .        .  404 

166.  (4)  The  prohibition  of  certain  means  of  destruction        .        .  414 

167.  Treatment  of  non-combatants.     (1)  The  gradual  amelioration  of 

their  condition    .                                                                    ,  415 


Xviii  CONTENTS 

SECTION  PAG« 

168.  (2)  The  extent  of  their  exemption  from  personal  injury         .  416 

169.  (3)  The  cessation  of  the  barbarities  inflicted  on  the  inhab- 

itants of  captured  towns 420 

170.  (4)  The  special  protection  granted  to  those  who  tend  the  sick 

and  wounded 421 

CHAPTER  IV 
THE  LAWS  OF  WAK  WITH  REGARD  TO  ENEMY  PROPERTY  ON  LAND 

171.  Property  of  the  enemy  government  found  within  a  state  at  the 

outbreak  of  war 423 

172.  Real  property  of  enemy  subjects  found  within  a  state  at  the  out- 

break of  war 424 

173.  Personal  property  of  enemy  subjects  found  within  a  state  at  the 

outbreak  of  war          .        .         .        .        .                 .        .  425 

174.  The  special  case  of  stock  held  by  enemy  subjects  in  the  public 

debt 427 

175.  Booty 429 

176.  Invasions  historically  considered 431 

177.  The  essentials  of  military  occupation    ......  434 

178.  Rights  over  state  property  gained  by  military  occupation     .         .  436 

179.  Rights  over  private  property  gained  by  military  occupation .        .  440 

180.  The  special  case  of  requisitions,  contributions,  and  fines      .        .  443 

CHAPTER  V 
THE  LAWS  OF  WAR  WITH  REGARD  TO  ENEMY  PROPERTY  AT  SEA 

181.  The  national  character  of  vessels 450 

182.  The  extent  to  which  vessels  of  the  enemy  are  liable  to  capture     .  451 

183.  The  extent  to  which  enemy  goods  at  sea  are  liable  to  capture       .  460 

184.  The  practice  of  ransom 463 

185.  Recapture  at  sea  and  the  jus  postliminii 465 

186.  The  right  of  search        .        .        .        .        .        .        .        .        .468 

187.  Ship's  papers 474 

188.  Prize  Courts:  —  (1)  Their  nature,  and  the  responsibility  of  the 

state  for  their  decisions 476 

189.  (2)  Their  jurisdiction •  .         .480 

190.  (3)  Their  procedure 480 

191.  (4)  The  destruction  of  prizes  at  sea 482 

192.  The  International  Prize  Court 486 

193.  History  of  the  proposal  to  exempt  private  property  from  capture 

at  sea  in  time  of  war 494 

194.  Arguments  for  and  against  the  proposed  exemption        .        .  498 


CONTENTS  xix 


CHAPTER  VI 
THE  AGENTS,  INSTRUMENTS,  AND  METHODS  OF  WARFARE 

SECTION  PAGE 

195.  The  agents  of  warfare    .        .        .        .        . ' '      .        .        .        .  609 

196.  (1)  Guerilla  troops 510 

197.  (2)  Levies  en  masse 614 

198.  (3)  Savage  and  imperfectly  civilized  troops    ....  517 

199.  (4)  Spies 519 

200.  The  instruments  and  methods  of  warfare.     (1)  Privateers  .        .  521 

201.  (2)  A  volunteer  navy 623 

202.  (3)  Converted  merchantmen 526 

203.  (4)  Submarine  mines 632 

204.  (5)  Bombardments 639 

205.  (6)  Projectiles 543 

206.  (7)  Devastation 647 

207.  (8)  Stratagems 651 

208.  (9)  Assassination 653 

209.  (10)  Poison 664 


CHAPTER  VII 
THE  NON-HOSTILE  INTERCOURSE  OF  BELLIGERENTS 

210.  The  nature  of  non-hostile  intercourse 556 

211.  (1)  Flags  of  truce 557 

212.  (2)  Cartels 568 

213.  (3)  Passports,  safe-conducts,  and  safeguards ....  559 

214.  (4)  Licenses  to  trade 660 

215.  (5)  Capitulations 562 

216.  (6)  Truces  and  armistices •     .  564 


217.  War  is  usually  terminated  by  a  treaty  of  peace     ....     568 

218.  The  legal  consequences  of  the  restoration  of  peace        .        .        .     569 

219.  The  simultaneous  growth  in  modern  times  of  a  horror  of  war  and 

preparations  for  war .     572 

220.  International  commissions  of  inquiry  and  special  mediation         .     677 

221.  Arbitration  .        .        .570 


XX  CONTENTS 

PART   IV 

THE  LA  W  OF  NEUTRALITY 

CHAPTER  I 
THE  NATURE  AND  HISTORY  OF  NEUTRALITY 

SECTION  PAGB 

222.  Definition  of  neutrality.     The  elements  out  of  which  the  law  of 

neutrality  has  been  formed 587 

223.  The  history  of  neutrality 588 

224.  Neutrality  and  neutralization.     The  correct  meaning  of  neutral- 

ization          596 

225.  Neutralized  states 698 

226.  Neutralized  portions  of  unneutralized  states 601 

227.  Neutralized  waterways 605 

228.  The  divisions  of  the  law  of  neutrality    .        .        .        .        .        .606 

CHAPTER  n 
THE  DUTIES  OF  BELLIGERENT  STATES  TOWARDS  NEUTRAL  STATES 

229.  A  belligerent  state  ought  (1)  To  refrain  from  carrying  on  hostil- 

ities within  neutral  territory        .        .        .  .    608 

230.  (2)  To  leave  unmolested  as  far  as  possible  neutral  submarine 

cables .     612 

231.  (3)  To  abstain  from  making  on  neutral  territory  direct  prepa- 

rations for  acts  of  hostility 617 

232.  (4)  To  obey  all  reasonable  regulations  made  by  neutral  states 

for  the  protection  of  their  neutrality    ....     622 

233.  (5)  To  make  reparation  to  any  state  whose  neutrality  it  may 

have  violated 624 

CHAPTER  HI 
THE  DUTIES  OF  NEUTRAL  STATES  TOWARDS  BELLIGERENT  STATES 

234.  Duties  of  neutral  states  may  be  grouped  under  five  heads     .        .    629 

235.  (1)  Duties  of  abstention 630 

236.  (2)  Duties  of  prevention 633 

237.  (3)  Duties  of  acquiescence 648 

238.  (4)  Duties  of  restoration 649 

239.  (5)  Duties  of  reparation 661 

240.  The  powers  possessed  by  neutral  governments  for  the  protection 

of  their  neutrality 662 


CONTENTS  Xxi 

CHAPTER   IV 
ORDINARY  NEUTRAL  COMMERCE 

SECTION  PAGE 

241.  The  conflict  between  belligerent  and  neutral  interests  in  the  mat- 

ter of  trade 655 

242.  The  history  of  the  rules  of  ordinary  maritime  capture  .        .         .  657 

243.  The  Declaration  of  Paris 664 

244.  Present  condition  of  rules  of  ordinary  maritime  capture       .        .  668 

245.  Convoy 669 


CHAPTER  V 
BLOCKADE 

246.  The  nature  and  history  of  blockade 675 

247.  The  various  kinds  of  blockade 680 

248.  The  heads  of  the  law  of  blockade 683 

249.  What  constitutes  an  actual  blockade       .....  683 

250.  The  knowledge  of  the  party  supposed  to  have  offended  .         .  690 

251.  Violation  of  blockade 692 

252.  The  penalty  for  breach  of  blockade 696 

CHAPTER  VI 
TRADE  IN  CONTRABAND  OF  WAR 

253.  The  nature  of  contraband  of  war 697 

254.  Neutral  states  are  not  bound  to  stop  the  contraband  trade  of 

their  subjects       .........  698 

255.  What  articles  are  contraband  of  war  ?  .        .        .        .        .         .  702 

256.  Alterations  and  conditions 712 

257.  The  doctrine  of  continuous  voyages      ......  716 

258.  The  essentials  of  guilt  in  the  matter  of  contraband       .        .         .  719 

259.  The  penalty  for  carrying  contraband    .        .        .        .        .        .721 

CHAPTER  Vil 

UNNEUTRAL  SERVICE 

260.  The  nature  and  name  of  the  offence 724 

261.  The  lesser  offences  of  unneutral  service         .....  728 

262.  The  graver  offences  of  unneutral  service 730 


PART   I 

INTRODUCTORY 


CHAPTER   I 

THE    DEFINITION    AND   NATURE    OF    INTERNATIONAL    LAW 

§1 

INTERNATIONAL  LAW  may  be  defined  as  the  rules  which 

determine   the   conduct   of  the  general   body  of   , 

J  y  9     *      The  definition  of 

civilized  states  in  their  mutual  dealings.  international  Law. 

T       T  --IT  •          j.1,    '          •  Difficulty  of  mak- 

In  International  Law,  as  in  other  sciences,  a  ing  n  quite  satis- 
good  definition  is  one  of  the  last  results  to  be  fectory- 
reached.  Until  the  nature  and  scope  of  any  study  are 
clearly  seen,  its  boundaries  cannot  be  determined  with  per- 
fect accuracy.  A  definition,  in  order  to  be  satisfactory, 
ought  to  give  with  precision  the  marks  whereby  the  thing  to 
be  defined  is  distinguished  from  all  other  things ;  and  unless 
it  does  this  it  is  either  incomplete  or  misleading.  We  may 
expect  that  different  definitions  of  a  science  will  be  given, 
not  only  in  its  infancy,  before  its  nature  and  limits  are 
clearly  understood,  but  even  in  its  maturity,  if  those  who  cul- 
tivate it  differ  as  to  its  methods  and  as  to  the  extent  of  the 
subject-matter  with  which  it  deals.  International  Law  is  in 
this  latter  predicament.  It  has  been  studied  for  ages ;  but 
though  its  expounders  are  gradually  approaching  the  adop- 
tion of  a  consistent  body  of  doctrine,  they  have  not  yet 
come  to  an  agreement  upon  such  questions  as  the  exact 
character  of  the  processes  to  be  followed  in  their  reasoning, 
or  the  relation  of  their  science  to  Ethics  and  Jurisprudence. 

1 


2  THE   DEFINITION   OF   INTERNATIONAL  LAW 

Accordingly  each  writer's  definition  is  colored,  to  a  certain 
extent,  by  his  own  views ;  and  the  definition  at  the  head  of 
this  chapter  is  no  exception  to  the  general  rule.  It  regards 
International  Law,  not  as  an  instrument  for  the  discovery 
and  interpretation  of  a  transcendental  rule  of  right  binding 
upon  states  as  moral  beings  whether  they  observe  it  or  not 
in  practice,  but  as  a  science  the  chief  business  of  which  is  to 
find  out  by  observation  the  rules  actually  followed  by  states 
in  their  mutual  intercourse,  and  to  classify  and  arrange  these 
rules  by  referring  them  to  certain  fundamental  principles  on 
which  they  are  based. 

§2  :      •"•'•'"' 

It  will  be  seen  that  in  the  definition  we  have  given,  no 

mention  is  made  of  rights  and  obligations  of  states.     These 

terms  have  been  carefully  excluded  in  order  to 

The  precepts  of  • 

international  Law  avoid  the  controverted  question  whether  Inter- 
are  rules,  whether  ,  _  .  ,  ,  .  , 

they  are  or  are  not  national  Law  is,  strictly  speaking,  law  or  not. 
If  it  be  law  proper,  then  it  confers  rights  and 
creates  obligations;  but  if  the  term  law  is  improperly  applied 
to  it,  we  cannot  with  propriety  speak  of  rights  and  obliga- 
tions as  flowing  from  it.  In  framing  a  definition,  it  is  advis- 
able to  include  as  little  controverted  matter  as  is  possible 
without  sacrificing  clearness  to  a  desire  of  avoiding  diffi- 
culties. Acting  upon  this  principle,  we  have  used  the  neu- 
tral term  rules  instead  of  the  disputed  word  laws,  and  have 
discarded  altogether  the  phrase  rights  and  obligations.  The 
question  whether  our  science  is  properly  described  as  law 
will  be  found  discussed  further  on  ; 1  but  whichever  side  in 
the  controversy  we  take,  we  may  adopt  the  definition  at  the 
head  of  this  chapter. 

§3 

The  governments  of  all  states,  whether  civilized  or  barbar- 
ous, are  compelled  to  exert  activity,  not  merely  in  conduct- 

1  See  §  9. 


THE   DEFINITION   OF   INTERNATIONAL   LAW  3 

ing  their  internal  affairs,  but  also  in  regulating  their  conduct 
towards  the  governments  and  peoples  of  other  states.  They 
cannot  act  as  if  they  were  alone  in  the  world,  international  Law 

for  the  simple  reason  that  they  are  not  alone.   is  eeneral'y  ob- 
served by  states, 

The   coexistence   of   states   on   the   surface  of  though  here  and 

.  .  ,  .  ,  ,  there  some  of  its 

the  earth  renders  it  necessary  for  them  to  commands  are  dis. 
pay  some  sort  of  regard  to  one  another;  and  re^arded- 
the  more  civilized  the  states,  the  more  intimate  the  inter- 
course. Commerce,  intermarriage,  scientific  discovery,  com- 
munity of  religion,  harmony  in  political  ideas,  mutual  admira- 
tion as  regards  achievements  in  art  and  literature,  identity  of 
interests  or  even  of  passions  and  prejudices,  —  all  these,  and 
countless  other  causes,  tend  to  knit  states  together  in  a  social 
bond  analogous  to  the  bond  between  the  individual  man 
and  his  fellows.  But  just  as  men  could  not  live  together  in 
a  society  without  laws  and  customs  to  regulate  their  actions, 
so  states  could  not  have  mutual  intercourse  without  rules  to 
regulate  their  conduct.  The  body  of  such  rules  is  called 
International  Law.  Like  other  law,  it  is  occasionally  disre- 
garded by  some  of  those  who  live  under  it ;  and  owing  to 
the  absence  of  coercive  force  to  compel  nations  to  obedience, 
it  is  more  liable  to  be  violated  than  is  the  law  of  the  land. 
But,  all  statements  to  the  contrary  notwithstanding,  it  is 
generally  observed.  It  does  "determine  the  conduct  of  the 
general  body  of  civilized  states  "  ;  and  this  is  all  we  assert  in 
our  definition. 

§4 

Strictly  speaking,  there  is  not  one  International  Law, 
but  several.  Wherever  peoples  are  compelled  by  local 
contiguity  or  other  circumstances  to  enter  T 

0        •  International  Law 

into  relations  with  one  another,  a  set  of  rules  applies  to  civilized 

T  .  ,     . ,  states  onlv,  though 

and  customs  is  sure  to  grow  up  and  their  in-  u  is  not  confined 
tercourse  will  be  regulated  thereby.     The  rules  to  Chri8tian  8tate8' 
will  differ  at  different  times  and  among  different   groups. 
Their  nature  will  be  determined  by  the  ideas  current  upon 


4  THE   DEFINITION    OF    INTERNATIONAL   LAW 

the  subject  of  international  intercourse  and  the  practices 
permissible  in  warfare.  In  these  matters  the  notions  of 
classical  antiquity  differed  immensely  from  those  of  the 
modern  world ;  and  in  our  own  day  there  is  a  great  gulf 
fixed  between  the  views  of  civilized  Europeans  and  Americans 
on  the  one  hand,  and  those  of  backward  and  barbarous  peoples 
on  the  other.  But  though  there  are  several  systems  of 
International  Law,  there  is  but  one  important  system,  and  to 
it  the  name  has  been  by  common  consent  appropriated.  It 
grew  up  in  Christian  Europe,  though  some  of  its  roots  may 
be  traced  back  to  ancient  Greece  and  ancient  Rome.  It  has 
been  adopted  in  modern  times  by  all  the  civilized  states  of 
the  earth.  The  nations  of  the  American  continent  are  bound 
by  it  no  less  than  the  powers  of  Europe ;  while  among  the 
Asiatic  states  Japan  not  only  observes  it  carefully,  but  takes 
an  active  part  in  its  development.  We  have,  therefore,  in 
our  definition,  referred  to  it  as  "the  rules  which  determine 
the  conduct  of  the  general  body  of  civilized  states." 

§6 

We  have  spoken  hitherto  of  the  mutual  intercourse  of 
states  and  the  rules  for  dealing  with  it.  But  a  great  part 
international  Law  of  International  Law  consists  of  rules  for  carry - 

regulates  the  con-      •  i  . ,-,  .     ,        •, 

duct  of  states  in  ing  on  war>  and  war  cannot  with  propriety  be 
their  mutual  deal-  termed  international  intercourse.  Yet  if  it  is 

ings,  hostile  as 

weii  as  pacific.  not  intercourse  it  arises  out  of  intercourse; 
for  if  states  could  live  an  isolated  life,  though  they  would 
never  be  friendly,  they  would  also  never  quarrel.  More- 
over, civilized  states  have  in  the  course  of  ages  come  to  adopt, 
and  in  a  large  measure  to  keep,  a  number  of  most  important 
rules  for  determining  their  conduct  when  at  war,  both  towards 
the  enemy  and  towards  other  powers  not  involved  in  the 
quarrel;  and  the  latter,  who  are  termed  neutral,  have  also  to 
observe  special  rules  with  regard  to  the  belligerents.  All 
these  rules  are  parts  of  International  Law;  for  they  guide 
the  conduct  of  states  in  their  relations  with  one  another. 


THE   DEFINITION   OF   1NTEENATIONAL  LAW  5 

We  have  endeavored  to  include  them  in  our  definition,  along 
with  the  rules  of  ordinary  pacific  intercourse,  under  the  com- 
prehensive phrase,  "rules  which  determine  the  conduct  of 
the  general  body  of  civilized  states  in  their  dealings  with  one 
another." 

8  6 

Matters  belonging  to  the  sphere  of  external  activity  are 
generally  carried  on  between  state  and  state,  or,  to  speak 
with  absolute  precision,  between  government  international  Law 

.  includes  the  rules 

and  government.     But  there  is  a  large  number  of  maritime  cap- 
of  cases  in  which  external  matters  have  to  be  ^s  fo^determln- 
settled  between  the  government  of  one  state,  ^^ichoftwo 

'    conflicting  sys- 

acting  through  its  authorized  agents,  and  pri-  terns  of  law  shall 

-...,,  .  prevail  in  matters 

vate  individuals  belonging  to  another  state,  of  private  right. 
Thus,  if  in  time  of  war  a  subject  of  a  neutral  state  attempts 
to  carry  to  one  of  the  belligerents  articles  useful  chiefly  for 
warlike  purposes,  such  as  arms  and  ammunition,  the  other 
belligerent  may  stop  him  on  the  high  seas  or  in  belligerent 
territory,  and  confiscate  all  the  goods  in  question,  after  trial 
and  sentence  in  what  is  called  a  Prize  Court  of  the  captor's 
country.  Again,  if  a  man  makes  a  contract  in  one  state  to 
be  performed  in  another,  or  becomes  bankrupt  in  one  state 
having  property  and  creditors  in  another,  a  foreign  tribunal 
may  have  to  deal  with  him  and  decide  what  law  it  shall 
apply  to  his  case.  These  are  but  illustrations ;  yet  it  is  clear 
from  them  that  between  the  first  and  second  of  the  cases 
indicated  there  is  a  great  difference.  The  neutral  individual 
whose  contraband  cargo  is  confiscated  suffers  under  a  rule 
to  which  his  government  has  given  express  or  tacit  consent, 
and  if  any  other  rule  is  applied  his  state  will  at  once  protest 
and  demand  compensation  for  the  injury  done  to  her  subject. 
It  is  only  the  procedure  which  applies  in  the  first  instance  to 
a  private  person.  The  rules  are  international  in  the  strictest 
sense.  On  the  other  hand  the  private  person  who  finds  that 
a  court  of  a  foreign  state  has  adjudicated  upon  his  case  by 
applying  to  it  a  rule  of  law  unlike  his  own  will  invoke  in 


6  THE   DEFINITION   OP   INTERNATIONAL   LAW 

vain  the  aid  of  his  government  to  secure  for  him  a  different 
decision.  He  will  be  told  that  there  are  no  received  inter- 
national rules  dealing  with  these  matters  of  private  right. 
In  regard  to  them  each  state  can  act  as  it  pleases  through  its 
tribunals,  as  long  as  it  does  not  perpetrate  upon  subjects  of 
other  states  continuous  and  flagrant  injustice.  The  rules 
and  principles  adopted  by  the  tribunals  are  sometimes  called 
Private  International  Law;  but  the  title  is  a  misnomer,  for 
they  are  not  international  in  any  true  sense.1  In  time,  how- 
ever, they  may  become  so;  for  the  courts  of  civilized  states 
are  coming  more  and  more  into  harmony  with  regard  to  them, 
and  what  is  called  the  Conflict  of  Laws  is  being  brought  to 
an  end  by  means  of  a  tacit  agreement  as  to  what  law  shall 
prevail  in  each  kind  of  case.  Moreover,  important  bodies, 
such  as  the  Institut  de  Droit  International,  are  seeking  to 
solve  difficulties  by  elaborating  rules  and  recommending 
states  to  embody  them  in  international  treaties.2  The  Berne 
Convention  of  1886  on  the  subject  of  copyright  may  be  cited  as 
an  example  of  what  is  aimed  at.  Thirteen  countries,  includ- 
ing Great  Britain,  are  parties  to  this  agreement.  The 
United  States,  which  has  not  signed  it,  has  copyright  treaties 
with  the  principal  European  powers.  If  bodies  of  rules  on  this 
and  other  matters  of  private  right  should  come  to  be  accepted 
by  all  civilized  powers,  they  w<5uld  thereby  acquire  the 
character  of  true  International  Law. 


The  name  International  Law  is  much  more  modern  than 

the  system  to  which  it  is  applied.     Facts  and  theories  as  to 

the  origin  and  basis  of  our  science  have  been 

The  history  of  the  ° 

names  given  to      reflected  in  its  nomenclature.     A  great  number 

of  its  precepts  and  many  of  its  diplomatic  forms 

were  derived  from  Roman  Law,  directly  by  civilians  or  indi- 

1  Holland,   Jurisprudence,  pp.  286-288  ;  Pollock,  First  Book  of  Juris- 
prudence, pp.  96,  97. 

2  Annuaire  de  V  Institut  de  Droit  International,  1902,  1904,  1906,  1908. 


THE    DEFINITION    OF   INTERNATIONAL   LAW  7 

rectly  by  canonists,  and  accordingly  it  was  sometimes  entitled 
Civil  Law  (Jus  Civile).  Bishop  Ridley,  as  Visitor  of  the  Uni- 
versity of  Cambridge  in  the  reign  of  Edward  VI,  declared  in 
a  speech  to  that  learned  body,  "  We  are  sure  you  are  not 
ignorant  how  necessary  a  study  that  study  of  Civil  Law  is 
to  all  treaties  with  foreign  princes  and  strangers."  l  And 
about  a  century  and  a  half  afterwards  Locke2  wrote  this 
quaint  and  significant  passage:  "  A  virtuous  and  well-behaved 
young  man,  who  is  well  versed  in  the  general  part  of  the 
Civil  Law  (which  concerns  not  the  chicane  of  private  cases, 
but  the  affairs  and  intercourse  of  civilized  nations  in  general, 
grounded  upon  principles  of  reason),  understands  Latin  well, 
and  can  write  a  good  hand,  one  may  turn  loose  into  the 
world  with  great  assurance  that  he  will  find  employment  and 
esteem  everywhere."  Meanwhile  other  influences  had  made 
themselves  felt.  The  Puritan  idea  that  the  Bible  contained 
a  complete  code  of  conduct  applicable  to  all  possible  condi- 
tions caused  such  works  to  be  written  as  Richard  Bernard's 
The  Bible  battels,  or  the  sacred  art  military ;  for  the  rightly 
wageing  of  ivarre  according  to  the  Holy  Writ.  This  was  pub- 
lished in  1629,  four  years  after  the  epoch-making  work  of 
Hugo  Grotius,  De  Jure  Belli  ac  Pads,  had  appeared  at  Paris. 
Pufendorff,  the  great  disciple  of  Grotius,  published  in  1672 
his  De  Jure  Naturce  et  Gentium,  the  title  of  which  bore  wit- 
ness to  the  influence  exercised  on  our  subject  by  the  theory 
of  a  Law  and  a  State  of  Nature.  Similar  evidence  is  afforded 
by  the  names  bestowed  upon  their  works  by  many  of  the 
great  publicists  of  the  eighteenth  century.  The  phrase  Law 
of  Nations  was  generally  used  by  them  to  indicate  the  inter- 
national code.  Its  capital  defect  as  a  name  was  the  fact  that 
it  exactly  translated  the  Latin  Jus  Gentium,  and  thus  lent 
color  to  the  erroneous  fancy  that  a  large  and  important  de- 
partment of  the  law  of  ancient  Rome  was  concerned  with  the 

1  Nys,  UHistoire  Litteraire  et  Dogmatique  du  Droit  International  en 
Angleterre,  p.  27. 

8  OH  Education,  §  175. 


8  THE   DEFINITION   OF   INTERNATIONAL  LAW 

mutual  rights  and  duties  of  independent  states.  The  great 
English  jurist,  Jeremy  Bentham,  put  an  end  to  the  difficulty 
by  coining,  in  1780,  the  phrase  International  Law.1  It  was 
a  translation  of  part  of  the  title  of  a  work  by  Dr.  Zouch,  who 
was  Judge  of  the  English  Court  of  Admiralty  in  the  reign  of 
Charles  I  and  author  of  a  book  entitled  De  Jure  Feciali,  sive 
Judicio  inter  Grenteg.  The  phrase  Judieium  inter  Grentes,  an- 
glicized into  International  Law  and  adopted  into  French  and 
German  as  Le  Droit  International  and  Das  Volkerrecht  re- 
spectively, sets  forth  with  brevity  and  clearness  the  character 
of  our  science  as  the  system  of  rules  held  to  be  binding  be- 
tween the  members  of  the  great  society  of  civilized  powers. 
But  unfortunately  it  obscures  the  fact  that  the  members  of 
this  society  are  the  political  communities  we  call  states,  not 
the  groups  united  by  ethnological  and  other  ties  to  which  we 
give  the  name  of  nations.  In  our  chapter  on  the  Subjects 
of  International  Law  we  shall  set  forth  the  difference  between 
them.  Here  it  is  sufficient  to  point  out  that  when  the  state 
and  the  nation  do  not  coincide,  International  Law  deals  with 
the  former  and  not  the  latter. 

§8  s 

In  discussing  the  nature  of  our  science,  we  find  ourselves 
confronted  by  two  great  questions.  We  have  first  to  con- 
The  two  problems  :  sider  whether  International  Law  is,  properly 
tionai  Law  reaiiy  speaking,  law  at  all.  And  in  the  second  place, 


we  musfc  settle  f°r  ourselves  the  problem  of  the 
mies  derived  from  origin  and  essential  character  of  the  rules  we 

in  tuition  or  experi-  ° 

ence?  study.     Can  they  be  deduced  from  principles 

of  universal  authority,  which  every  man  of  sense  discovers 
for  himself  by  the  exercise  of  his  reason,  but  which  exist  in- 
dependently of  human  arrangements  and  human  rules  ?  Or 
must  they  be  generalized  from  the  practice  of  states  in  their 
dealings  with  one  another  ?  In  other  words,  are  the  methods 
of  International  Law  transcendental  and  a  priori,  or  are 
1  Principles  of  Morals  and  Legislation,  ch.  XIX,  §  xxv. 


THE   DEFINITION   OP   INTERNATIONAL   LAW  9 

they  historical,  inductive,  and  classificatory  ?  We  will  deal 
with  these  two  questions  in  the  order  in  which  we  have 
stated  them. 

'§9  :  : /  "  ,  '    ;  /•;• 

The  controversy  as  to  the  first  is  always  with  us.  There 
is  in  every  country  a  school  of  public  instructors,  who,  when- 
ever they  deem  an  accepted  rule  of  international  Is  international 
conduct  inconvenient,  declare  that  no  such  thing  Law  reaUy  tew  ? 
as  law  is  known  in  international  intercourse.  On  this  propo- 
sition they  found  the  advice  that  the  state  need  not  subject 
itself  to  any  restraints  which  it  is  strong  enough  to  disregard. 
A  sort  of  perverted  pride  is  taken  in  this  assertion,  which,  if 
it  were  correct,  would  mean  that  mankind  is  still  anti-social 
and  barbarous  in  a  most  important  sphere  of  its  activity. 
But  fortunately  it  is  not  correct.  Civilization  spells  restraint. 
A  society  of  nations  involves  a  law  of  nations.  And  this 
law  is  not  reduced  to  nullity  by  being  sometimes  broken,  any 
more  than  the  law  of  the  land  becomes  a  mere  dream  because 
many  habitual  criminals  disregard  it  with  impunity  every 
day.  The  rule  of  force  and  force  alone  is  a  sign  of  barbarism 
all  the  world  over.  The  more  backward  a  community  the 
less  does  it  observe  any  command  which  cannot  be  driven 
home  at  the  moment  by  sinews  or  weapons.  It  is  perfectly 
true  that  states  have  no  common  superior.  The  universal 
dominion  of  emperor  and  pope  disappeared  centuries  ago 
from  the  realm  of  facts.  Even  the  theory  that  it  ought  to 
exist  belongs  to  a  distant  past ;  while  it  is  to  the  future  that 
the  most  sanguine  among  us  look  for  glimpses  of  a  world- 
wide federation,  with  a  central  authority  created  by  general 
consent  and  empowered  to  settle  disputes  among  the  states 
who  are  members  of  the  universal  commonwealth.  The 
present  is  devoid  of  a  supreme  authority.  We  can  find  in 
it  only  the  germs  which  may  develop  into  one.1  But  mean- 

1  Lawrence,  International  Problems  and  Hague  Conferences,  pp.  31-47, 
69-72. 


10  THE   DEFINITION   OF  INTERNATIONAL  LAW 

while  there  are  many  rules  of  international  conduct  which 
the  general  opinion  of  civilized  mankind  approves.1  They 
are  enforced  partly  by  a  conscientious  conviction  that  they 
are  good  and  right,  partly  by  those  subtle  influences  which 
make  it  difficult  for  a  man  or  a  body  of  men  to  act  in  defiance 
of  the  strongly  held  views  of  those  with  whom  they  habit- 
ually associate,  partly  by  a  fear  lest  disregard  of  them  should 
in  the  long  run  bring  evil  on  the  recalcitrant.  These  rules, 
though  like  other  rules  they  are  sometimes  evaded  and  some- 
times defied,  do,  nevertheless,  receive  general  obedience. 
We  may  therefore  term  them  laws,  unless  we  follow  Austin  2 
in  his  developments  of  that  analysis  of  sovereignty  which 
may  be  traced  back  at  least  as  far  as  Jean  Bodin,3  the  great 
French  political  thinker  of  the  sixteenth  century,  and  even 
further  still  to  mediaeval  canonists  anxious  for  the  aggran- 
dizement of  papal  power.4  If  no  one  is  lawgiver  who  cannot 
bring  a  definite  and  foreordained  evil  to  bear  on  the  disobe- 
dient, and  nothing  is  law  which  does  not  rest  in  the  last  resort 
on  superior  force,  then  indeed  it  is  impossible  to  discover  in  the 
social  code  of  civilized  states  many  precepts  which  we  can 
dignify  by  that  exalted  title.  But  if  we  are  content  with 
the  definition  of  Richard  Hooker,  the  great  Elizabethan 
divine,  who  spoke  of  law  as  "  any  rule  or  canon  whereby  ac- 
tions are  framed,"  5  we  may  apply  the  term  to  those  regula- 
tions concerning  international  conduct  which  meet  with 
general  acceptance  among  civilized  communities.  Here  and 
there  we  find  divergent  views  embodied  in  conflicting  pro- 
posals. Moreover,  when  new  cases  arise,  as  they  must  in  a 
society  which  is  living  and  growing,  the  manufacture  of 
legal  clothing  to  fit  them  takes  a  considerable  time  and  gives 
rise  to  much  discussion.  But  the  rules,  for  the  most  part, 
are  clear  and  definite ;  and  habitual  obedience  is  secured  for 

1  Lawrence,  International  Problems  and  Hague  Conferences,  pp.  4-7. 

2  Lectures  on  Jurisprudence,  'lect.  VI.  8  De  la  Bepublique. 

4  Figgis,    From   Gerson    to    Grotius,   pp.  126-130 ;    Maitland,   Political 
Theories  of  the  Middle  Ages  (translated  from  Gierke),  pp.  82-100. 
6  Ecclesiastical  Polity,  bk.  I,  ch.  Ill,  i. 


THE   DEFINITION   OF   INTERNATIONAL   LAW  11 

them,  though  by  moral  more  often^than  by  material  force.  A 
reasonable  uniformity  of  conduct  is  thus  produced  among 
those  to  whom  the  rules  are  set,  that  is  to  say,  the  organized 
governments  of  the  civilized  portion  of  the  human  race.  The 
application  of  the  term  International  Law  to  the  provisions  of 
their  social  code  is  justified  by  the  usage  of  more  than  a  cen- 
tury ;  and,  though  the  phrase  is  open  to  the  objection  urged 
at  the  end  of  section  seven,  there  seems  no  sufficient  reason 
for  discarding  it,  and  searching  for  a  new  one.  Indeed,  we 
shall  speak  not  only  of  International  Law,  but  of  International 
Morality  also,  meaning  by  the  former  phrase  rules  which 
states  have  expressly  or  tacitly  consented  to  observe,  and 
by  the  latter  rules  which  in  our  view  they  ought  to  observe. 
Thus  in  passing  judgment  upon  the  conduct  of  a  state  on  a 
given  occasion,  we  shall  be  able  to  say  it  was  both  legal  and 
moral,  or  it  was  legal  but  not  moral,  or  it  was  moral  but  not 
legal,  or  it  was  neither  moral  nor  legal.  And,  as  if  there 
was  not  in  these  statements  a  sufficient  wealth  of  alternatives, 
the  writings  of  publicists  provide  us  with  yet  another.  They 
speak  of  the  Comity  of  Nations,  meaning  thereby  those  rules 
of  courtesy,  the  benefit  of  which  states  sometimes  accord  to 
one  another,  though  not  bound  to  do  so  by  the  accepted  inter- 
national code.  We  have  to  add,  therefore,  to  International 
Law  and  International  Morality,  International  Comity  also. 
A  state  act  may  be  legal,  moral,  courteous,  or  any  combination 
of  these  three. 

§  10 

The  next  subject  to  be  discussed  is  far  more  important. 
It  matters  very  little  whether  we  call  International  Law  by 
that  name,  or  by  one  somewhat  different,  as  long  Does  International 
as  both  names  signify  the  same  thing  ;  but  it  Law  proceed  by 

0         "  °  the a priori  or  by 

matters  a  great  deal  whether  we  regard  it  as  an  the  historical 
a  priori  inquiry  into  what  the  rules  of  interna- 
tional intercourse  ought  to  be  or  an  historical  investigation 
of  what  they  are.     Many  books  on  the  subject  proceed  upon 


12  THE   DEFINITION   OF  INTERNATIONAL  LAW 

the  assumption  that  it  is  possible  by  reasoning  from  certain 
general  principles,  which  are  assumed  rather  than  proved,  to 
discover  a  number  of  absolute  rights  possessed  by  states  in 
virtue  of  their  independent  existence.1  International  Law, 
it  is  asserted,  recognizes  these  rights,  but  does  not  create 
them,  since  they  are  antecedent  to  all  law,  or  at  any  rate  to 
all  law  of  human  imposition.  But  the  writers  who  reason 
thus  proceed  to  fill  up  all  the  details  of  their  systems  by  re- 
ferring to  the  conduct  of  states  under  circumstances  which 
have  actually  occurred.  They  thus  save  themselves  from 
the  reproach  of  evolving  their  International  Law  from  their 
own  inner  consciousness,  but  only  by  disregarding  through 
the  greater  part  of  their  works  the  principles  set  forth  in  the 
opening  chapters.  Those  who  treat  the  subject  in  this  man- 
ner cannot  be  expected  to  distinguish  between  the  intui- 
tional and  the  inductive  method.  But  it  is  impossible  to 
avoid  confusion  unless  we  decide  between  them  ;  and  in  order 
to  bring  about  a  decision,  it  will  be  useful  to  ask  one  or  two 
simple  questions.  Do  states  refer  in  their  controversies 
with  one  another  to  innate  ideas  of  justice,  or  to  principles 
accepted  by  general  opinion  ?  Do  they  appeal  to  precepts 
deduced  from  the  consideration  of  absolute  rights  antecedent 
to  custom  and  law,  or  to  rules  which  can  be  shown  to  have 
been  adopted  in  similar  circumstances  by  all  or  most  states  ? 
A  slight  acquaintance  with  the  history  of  international  trans- 
actions will  show  that  the  latter  alternative  is  the  one 
adopted  with  something  approaching  to  unanimity.  States- 
men uphold  a  cause  for  which  they  are  contending  by  refer- 
ence to  acknowledged  rules  deduced  from  general  practice. 
If  there  are  no  precedents  exactly  applicable  to  the  matter  in 
hand,  they  endeavor  to  show  that  admitted  principles,  logically 
developed,  lead  to  the  conclusions  they  wish  to  establish. 
Very  seldom  do  we  find  nothing  but  appeals  to  natural  right, 
or  innate  principles  of  justice  and  humanity.  Sometimes 

1  Cf.  Wheaton,    Elements    of  International    Law,    §  60 ;    Hautefeuille, 
Droit  des  Nations  Neutres,  Discours  Pr&imLnaire,  VI-XVIII. 


THE   DEFINITION  OF  INTERNATIONAL   LAW  13 

such  references  are  used  to  clinch  an  argument  otherwise 
well  driven  home,  but  more  often  they  bolster  up  a  case  for 
which  little  support  can  be  found  elsewhere.  Their  presence 
alone  in  a  state  paper  is  a  pretty  sure  sign  that  International 
Law  is  hopelessly  against  the  contentions  of  its  authors.  It 
is  safe  to  assert  that  whenever  it  is  possible  diplomatists  base 
their  arguments  on  usage,  and,  if  usage  is  doubtful,  on  prin- 
ciples which  have  been  adopted  by  great  groups  of  civilized 
powers. 

Now  if  those  who  have  to  conduct  the  external  affairs  of 
states  appeal  in  controversies  with  other  states,  not  to  such 
ideas  of  justice  as  most  commend  themselves  at  the  time  to 
the  parties  concerned,  but  to  a  previously  determined  body 
of  rules,  we  may  feel  sure  that  the  mutual  intercourse  of 
states  is  governed  by  these  rules,  and  that  they  are  the  sub- 
ject-matter of  International  Law.  Its  students,  therefore,  are 
primarily  inquirers  into  what  is,  not  into  what  ought  to  be. 
And  their  method  must  of  necessity  be  historical,  since  the 
only  recognized  means  of  discovering  what  rules  apply  to 
particular  cases  in  the  present  takes  the  form  of  an  inquiry 
into  the  history  of  similar  cases  in  the  past.  The  rules,  and 
the  principles  on  which  they  rest,  may  be  morally  good  or 
morally  bad.  We  may  approve  them,  or  we  may  disapprove. 
But  if  they  determine  the  conduct  of  governments  in  relation 
to  one  another,  if  they  define  the  rights  and  set  forth  the 
obligations  of  states,  they  are  International  Law. 


But  while  we  hold  those  rules  to  be  International  Law 
which  states  do  actually  observe,  without  re-  The  place  of  etw- 
gard  to  their  goodness  or  badness,  we  do  not  £j££S£SS* 
imagine  that  the  moral  quality  of  these  rules  is  Law- 
a  matter  of  indifference,  or  believe  that  writers  on  public  law 
need  not  trouble  themselves  about  it.     All  we  contend  for  is 
that  the  question  what  are  the  rules  of  International  Law  on 
a  given  subject,  and  the  question  whether  they  are  good  or 


14  THE   DEFINITION   OF   INTERNATIONAL  LAW 

bad,  should  be  kept  distinct.  They  differ  in  their  nature  and 
in  their  method  of  solution  ;  and  nothing  but  harm  can  come 
of  any  attempt  to  unite  them.  Yet  it  is  often  the  duty  of 
jurists  to  put  ethical  considerations  prominently  forward. 
Even  in  a  book  on  some  portion  of  ordinary  Municipal  Law, 
we  should  expect  to  find  expressions  of  opinion  upon  various 
rules,  the  justice  of  which  was  disputed  among  those  com- 
petent to  form  a  judgment.  And  if  no  reasonable  objection 
can  be  taken  to  such  a  course,  it  cannot  be  doubted  that  the 
publicist  is  justified  in  suggesting,  on  moral  grounds,  altera- 
tions in  International  Law  where  he  deems"  it  open  to  objec- 
tion, provided  always  that  he  does  not  proceed  to  regard  as 
law  the  new  rule  he  has  suggested,  because  he  believes  he 
has  proved  it  to  be  much  superior  to  the  old. 

But  in  addition  to  cases  of  change  and  reform,  there  are 
other  cases  which  must  be  dealt  with  on  ethical  grounds.  If 
a  point  of  Municipal  Law  is  doubtful,  men  resort  to  a  supreme 
court  for  a  decision,  or  to  a  supreme  legislature  for  an  inter- 
preting statute  ;  but  if  a  point  of  International  Law  is  doubt- 
ful, they  can  resort  only  to  general  reasoning  for  a  convincing 
argument,  unless,  indeed,  they  settle  the  question  by  blows. 
He  who  in  such  a  case  bases  his  reasoning  on  high  considera- 
tions of  morality  may  succeed  in  resolving  the  doubt  in 
accordance  with  humanity  and  justice.  International  Law 
in  many  of  its  details  is  peculiarly  liable  to  disputes  and 
doubts,  because  it  is  based  on  usage  and  opinion.  Some- 
times there  are  two  or  more  diverse  usages,  each  supported 
by  a  considerable  number  of  precedents,  and  each  backed  up 
by  a  respectable  body  of  opinion.  Sometimes  a  new  ques- 
tion arises,  unlike  in  many  respects  any  that  have  occurred 
before.  No  precedents  exactly  fit  it,  and  among  recognized 
principles  there  is  more  than  one  from  which  a  rule  to  settle 
the  dispute  might  be  deduced.  After  it  has  been  discussed, 
debated,  and  perhaps  fought  over,  for  many  years,  a  clear 
and  consistent  body  of  usage  with  regard  to  it  emerges  from 
the  confusion,  and  a  new  collection  of  rules  is  added  to  Inter- 


THE   DEFINITION   OF   INTERNATIONAL   LAW  15 

national  Law.  The  controversies  of  one  generation  produce 
the  undoubted  law  of  the  next ;  and  meanwhile  a  fresh  series 
of  difficulties  has  arisen,  which  in  its  turn  will  give  birth  to 
a  new  chapter  of  accepted  law.  There  is  great  scope  for 
argument  in  the  settlement  of  these  controversies ;  and 
ethical  principles  should  be  put  prominently  forward  by  all 
writers  who  deal  with  them.  Nations  are  sure  not  to  forget 
considerations  of  self-interest ;  but  the  publicist  should  rise 
above  national  prejudice,  and  endeavor  so  to  use  his  influ- 
ence as  to  make  the  system  he  expounds  at  the  same  time 
more  scientific  and  more  just.  The  fact  that  within  the  last 
few  years  the  civilized  world  has  begun  to  meet  in  Hague 
Conferences,1  for  the  purpose  of  discussing  new  questions 
and  clearing  up  doubts  as  to  existing  rules,  strengthens  the 
position  maintained  in  the  previous  sentences.  If  the  opin- 
ion we  wish  to  influence  is  periodically  focussed  in  a  great 
assembly  possessed  of  quasi-legislative  power,  it  is  all  the 
more  imperative  on  us  to  address  to  it  our  most  cogent  argu- 
ments, in  the  hope  of  influencing  its  decisions  for  good. 

§12 

We  are  now  in  a  condition  to  sum  up  the  results  of  a  long 
and  somewhat  intricate  chain  of  reasoning.  Briefly,  they 
are  these.  The  controversy  as  to  whether  the  a 

Summary  of 

term   law  is  properly  applied  to  the   rules   of  results  attained 
international  conduct  is  a  mere  logomachy.     If 
we   hold   that   all   laws  are  commands  of  superiors,  Inter- 
national  Law   is   improperly   so   called.     If   we  hold   that 
whatever  precepts  regulate  conduct  are  laws,  International 
Law    is  properly  so  called.     But  since   almost  all  writers 
apply   the   term   law  to   the   rules   which   guide   states   in 
their  mutual  intercourse,  it  seems  best  to  adopt  it,  on  the 
clear  understanding  that  the  word  is  used  in  the  latter  sense. 
International  Law  proceeds  first  by  the  method  of  inquiry 

1  See  §§  32,  33. 


16  THE  DEFINITION   OF   INTERNATIONAL  LAW 

into  the  practices  of  states  in  their  dealings  with  each  other, 
and  into  the  acknowledged  principles  on  which  those  prac- 
tices are  based.  Having  discovered  what  they  are,  it  has 
next  to  classify  them,  derive  rules  from  them,  and  reduce 
them  to  system.  Incidentally,  however,  it  deals  with  the 
question  of  what  the  rules  ought  to  be,  whenever  a  change 
is  felt  to  be  desirable,  or  a  doubt  has  to  be  resolved.  A 
writer  on  International  Law,  therefore,  must  cease  to  rely 
exclusively  upon  the  method  of  observation  and  classification, 
when  he  wishes  to  clear  up  a  doubtful  point  or  bring  about 
a  needful  reform.  For  a  moment  his  science  ceases  to  be 
inductive,  and  he  flies  to  general  reasoning,  knowing  that  if 
he  convinces  all  concerned  to  the  extent  of  influencing  their 
conduct,  he  ipso  facto  resolves  the  doubt  or  changes  the  law. 
In  a  sense  he  himself  legislates,  for  he  creates  the  opinion  that 
is  really  supreme.  And  this  he  does  without  deserting  the 
positive  method  and  confounding  the  ideal  with  the  real.  A 
rule  may  in  time  become  a  part  of  International  Law  owing 
to  the  cogency  of  his  arguments  ;  but  he  must  not  say  it  is 
law  until  it  has  met  with  general  acceptance  and  been  in- 
corporated into  the  usages  of  states. 


CHAPTER  II 

THE   HISTORY   OF   INTERNATIONAL  LAW 
§13 

INTERNATIONAL  LAW,  as  we  know  it,  is  a  system  of  rules 
for  the  guidance  of  civilized  powers.     It  sprang  up  originally 
in  Europe,  and  extended  its  authority  to  states  The  hlgtory  of 
outside  European  boundaries  as  they  adapted  international  Law 

.     .  *          _        .         goes  back  to 

themselves     tO     European      CIVlllZatlOU.       In     its    ancient  Greece  and 

fulness  it   is  a  growth  of  modern   times.     Its 


leading  principles  are  little  more  than  three  Period8- 
hundred  years  old.  But  inasmuch  as  some  of  its  depart- 
ments —  for  example,  the  law  of  diplomatic  immunities  —  • 
can  be  traced  to  much  more  remote  antiquity,  it  seems  best 
to  commence  an  outline  of  its  development  by  going  back  to 
the  Roman  Republic  and  the  little  city-states  of  ancient 
Greece.  Starting  from  these  beginnings,  we  may  divide 
the  history  of  International  Law  into  three  periods,  during 
each  of  which  one  fundamental  idea  dominated  the  minds  of 
men  with  regard  to  the  external  relations  of  political  com- 
munities. But  there  are  no  strongly  marked  boundary  lines 
between  the  periods.  Each  gradually  shades  off  into  its 
successor  during  a  time  of  conflict  between  the  old  idea 
and  the  new.  The  first  two  are  preparatory.  In  them  we 
find  only  the  germs  of  that  which  attained  to  vigorous  life  in 
the  third. 

§14 

The   first  period  extends   from  the  earliest   times  to  the 

establishment  of  the  universal  dominion  of  Rome  under  the 

Caesars.     Its  distinguishing  mark  is  the  belief  that  nations 

owed  duties  to  one  another  if  they  were  of  the  same  race,  but 

c  17 


18  THE   HISTORY   OP   INTERNATIONAL   LAW 

not  otherwise.  States  as  such  possessed  no  rights,  and  were 
subject  to  no  obligations.  The  tie  of  kinship,  real  or 
in  the  FIRST  PB-  feigned,  near  or  remote,  through  the  father  or 
ewHe^tim^to  through  the  mother,  was  the  basis  of  all  an- 
the  Roman  Em-  cient  society ;  and  just  as  it  settled  the  condition 

pire  —  states  as  »  * 

such  had  no  mu-  of  the  individual  within  the  state,  so  it  also  pre- 
duliesf  scribed  and  limited  the  duties  of  the  state  to 

tattaroTi*!  other  states-  Tm's  comes  out  most  clearly  in 
tions  between  the  history  of  Greece.  In  the  Homeric  poems 

Hellenic  comma-  »  f 

nities.  piracy  and  robbery  are  accounted  honorable,  and 

there  is  no  distinction  between  a  state  of  war  and  a  state  of 
peace.  The  persons  of  heralds  were  indeed  respected,  but  this 
seems  to  have  been  due  to  religious  feeling  quite  as  much  as  to 
any  sense  of  intertribal  duty.  And  the  same  ferocity  which 
distinguished  early  society  appears  to  have  continued,  so  far 
as  barbarians  were  concerned,  down  to  the  close  of  the  inde- 
pendent political  existence  of  the  states  of  ancient  Greece. 
Aristotle  calmly  reasons  that  nature  intended  barbarians  to 
be  slaves,1  and  among  the  natural  and  honorable  means  of 
acquiring  wealth  he  classes  making  war  in  order  to  re- 
duce to  slavery  such  of  mankind  as  are  intended  by  nature 
for  it.2  At  a  later  period  still,  in  the  speech  of  the  Mace- 
donian ambassadors  urging  the  -/Etolian  Council  to  war  with 
Rome,  occurs  the  passage,  "  Cum  barbaris  eternum  omnibus 
Grtecis  bellum  est,  eritque."  3  This  was  doubtless  merely  a 
rhetorical  statement,  but  the  fact  that  it  could  be  made  is 
significant.  When  we  reflect  that  by  barbarian  was  meant 
simply  non-Greek,  we  see  at  once  that  the  Greeks  recognized 
no  duties  towards  those  nations  who  were  not  of  Hellenic 
descent.  But  among  themselves  they  had  a  rudimentary  In- 
ternational Law  based  upon  the  idea  that  all  Hellenic  peoples, 
being  of  the  same  race  and  similar  religion,  were  united  to- 
gether by  bonds  which  did  not  subsist  between  them  and  the 
rest  of  the  world.  They  were  often  guilty  of  acts  of  ferocious 

1  Politics,  bk.  I,  chs.  II,  VI.  «  Ibid.,  bk.  I,  ch.  VTIL 

8  Livy,  History,  bk.  XXXI,  ch.  29. 


THE   HISTORY   OF   INTERNATIONAL  LAW  19 

cruelty  in  their  warfare  with  one  another,  but  nevertheless 
they  recognized  such  rules  as  that  those  who  died  in  battle 
were  to  receive  burial,  that  the  lives  of  all  who  took  refuge 
in  the  temples  of  a  captured  city  were  to  be  spared,  and  that 
no  molestation  was  to  be  offered  to  Greeks  resorting  to  the 
public  games  or  to  the  chief  seats  of  Hellenic  worship.1 
When  Rhodes  became  the  great  naval  power  of  the  ^Egean, 
a  maritime  code  arose  which  was  called  the  Laws  of  the 
Rhodians,  and  was  obeyed  wherever  Greek  commerce  ex- 
tended. This  code  has  a  curious  and  important  history. 
From  it  were  derived  many  of  the  commercial  and  marine 
regulations  of  the  Roman  Emperors,  and  after  the  revival  of 
commerce  vague  recollections  of  imperial  laws  were  among 
the  influences  which  helped  to  form  the  Consolato  del  Mare, 
the  great  maritime  code  of  the  Middle  Ages,  from  which 
part  of  the  modern  law  of  naval  capture  and  many  modern 
commercial  regulations  are  derived.2 

§  15 

Among  the  Romans  of  the  Republic  there  is  perhaps  less 
trace  of  a  true  International  Law  than  among  the  Greeks. 
Rome  stood  alone  in  the  world.  She  was  not 

.  ,  .  n  Republican  Rome 

one  of  a  group  of  kindred  states  ;  and  therefore  possessed  no  true 
in  her  dealings  with  other  states  she  was  rarely 
restrained  by  any  notion  of  rights  possessed  by  them  as 
against  herself.  Her  jus  feciale,  and  the  rule  which  ex- 
cluded from  her  armies  all  who  had  not  taken  the  sacramen- 
tum,  or  military  oath,  sprang  partly  from  religious  feeling 
and  partly  from  the  love  of  order  which  so  distinguished 
the  ancient  Romans.  They  were  in  no  respect  due  to  any 
idea  that  Rome  had  obligations  towards  other  nations.  It 
was  the  duty  of  the  Fecials  to  demand  satisfaction  from  foreign 
states,  and  to  make  solemn  declarations  of  war  by  dooming 

1  Grote,  History  of  Greece,  part  II,  ch.  ii. 

2  Pardessus,  Us  et  Coutumes  de  la  Mer,  vol.  I,  pp.  21-34,  209-260,  and 
vol.  II,  pp.  1-368. 


20  THE   HISTORY   OF   INTERNATIONAL  LAW 

the  enemy  to  the  infernal  gods  ; l  but  the  law  which  imposed 
these  functions  upon  them  was  purely  a  matter  of  internal 
regulation,  and  by  the  time  of  Cicero  it  had  ceased  to  be 
strictly  observed.  The  rule  about  the  military  oath  was 
enforced  for  the  sake  of  discipline,  not  for  the  protection 
of  the  enemy  from  lawless  adventurers.  Instances  may  be 
quoted  of  the  use  by  Livy  and  other  Roman  writers  of  the 
phrase  jus  gentium  in  the  sense  of  usage  approved  by  the 
mind  and  conscience  of  mankind  in  matters  connected  with 
war  and  negotiation.  But  the  Roman  jurists  never  worked 
out  a  true  law  between  nations  ;  and  in  the  main  Rome 
never  claimed  for  herself,  nor  gave  to  other  states,  the  benefit 
of  any  idea  of  mutual  obligations  binding  on  them  as  sepa- 
rate international  persons.2 

§16 

Our  second  period  begins  with  the  establishment  of  the 
universal  dominion  of  Rome  under  the  Caesars,  and  ends  with 
in  the  SECOND  PE-  the  Reformation.  It  is  characterized  by  the  con- 
K^manEmpiMito  ception  that  there  was  to  be  found  somewhere 
the  Reformation  -  &  common  superior  who  regulated  the  dealings  of 

it  was  deemed  that 

the  relations  of       ordinary  political  communities  with  each  other, 

states  must  be  .,,...  ,  .  i          -i         i 

regulated  by  a  in  addition  to  keeping  peace  and  order  between 
FoIririonng8unTei0r'  individuals.  For  a  long  time  this  was  not 
the  Roman  Em-  on\y  a  great  fact,  but  the  most  obvious  and 

peror  was  such  a  * 

superior.  beneficent  fact  in  the  sphere  of  law  and  govern- 

ment. The  Roman  Empire  in  its  palmy  days  extended  over 
the  settled  part  of  Europe,  and  much  of  Asia  and  Africa. 
Roughly  speaking,  it  coincided  with  the  world  of  ancient 
civilization.  The  policy  of  its  rulers  frequently  left  some 
remnants  of  self-government  to  conquered  nations.  Thus 
Caesar  was  the  political  superior  of  a  large  number  of  sub- 

1  Livy,  History,  bk.  I,  ch.  32  ;  Cicero,  De  Officiis,  bk.  I,  ch.  ii. 

2  Westlake,  Chapters  on  the  Principles  of  International  Law,  pp.  18-25. 
Article  by  Professor  Nettleship  in  the  Journal  of  Philology,  vol.  XIII, 
No.  26. 


THE   HISTORY   OF   INTERNATIONAL   LAW  21 

ordinate  rulers  ;  and  their  disputes,  whether  personal  or 
national,  were  settled  by  appeals  to  him.  In  these  cir- 
cumstances International  Law  was  really  based  on  the 
commands  of  a  superior.  Its  precepts  were  laws  in  the 
strictest  Austinian  sense.1  They  imposed  perfect  obligations, 
and  were  armed  with  tremendous  sanctions.  Universal 
sovereignty  filled  men's  minds  with  awe  and  wonder.  The 
majestas  populi  Romani  was  an  object  of  religious  rev- 
erence, and  the  Roman  state  itself,  incarnate  in  the  person 
of  its  Csesar,  was  worshipped  as  a  god.  It  stood  between 
the  world  and  anarchy ;  it  protected  civilization  against 
barbarism  ;  it  united  the  nations  by  moral  and  material 
bonds  ;  it  kept  the  peace  within  its  boundaries,  and  held  at 
bay  beyond  them  the  savage  hordes  who  longed  for  the 
plunder  of  its  rich  provincial  lands.  No  wonder,  then,  that 
its  supremacy  was  not  merely  submitted  to,  but  welcomed. 
Theories  were  framed  about  it,  and  people  held  that  the  ex- 
istence of  a  common  superior  over  all  states  was  part  of  the 
natural  order  of  the  universe.  Memories  of  world-wide 
sway  were  so  deeply  graven  on  the  minds  of  men  that,  long 
after  Rome  had  fallen,  her  conquerors  strove  to  build  anew 
the  fabric  of  her  greatness,  and  their  chieftains  could  think 
of  no  alternative  to  tribal  sovereignty  but  universal  dominion. 
While  the  old  Roman  Empire  remained  strong,  fact  and 
theory  with  regard  to  the  settlement  of  disputes  between 
nations  coincided  with  tolerable  accuracy.  It  must  not  be 
supposed  that  the  emperors  issued  among  their  laws  any- 
thing like  an  international  code.  There  was  no  room  for 
any  such  body  of  rules,  because  the  subordinate  states  could 
have  little  foreign  policy.  Their  external  activity  was 
exercised  chiefly  in  their  dealings  with  Rome  herself.  In  these 
they  stood  rather  in  the  relation  of  suppliants  to  a  superior 
than  equals  treating  with  an  equal  on  common  ground. 
When  dynastic  disputes  arose,  or  when  one  subordinate  state 
complained  of  ill-treatment  from  another,  an  appeal  was 

i  See  §  9. 


THE   HISTORY   OF   INTERNATIONAL   LAW 

made  to  Csesar,  and  his  decision  was  final.  A  series  of 
isolated  judgments  on  such  cases  could  give  rise  to  no  body 
of  rules  by  which  international  conduct  could  be  guided  ; 
and,  in  fact,  no  such  rules  are  to  be  found  in  Roman  Law. 
With  regard  to  outer  barbarians,  the  customs  of  Roman  war- 
fare were  terribly  severe.  Slaughter  and  rapine  were  their 
portion  if  they  resisted  ;  and  those  who  escaped  the  sword 
were  too  often  sold  into  slavery. 

§17 

After  the  fall  of  the  Western  Empire,  the  theory  of  a 
common  superior  for  states  still  survived.  Just  as  Greece 
The  Holy  Roman  conquered  her  conquerors  by  bringing  them 
subjection  to  her  arts  and  her  philosophy, 


universal  author-     so  Rome  amid  the  ruins  of  her  material  power 

Ity  during  the  * 

Middle  Ages.  enslaved  the  minds  of  the  nations  who  no 
longer  submitted  to  her  yoke.  The  spell  of  her  world-wide 
dominion  was  not  broken  by  the  invasions  of  Attila  and  the 
sack  of  Genseric.  Men  held  that  her  dominion  was  to  be 
eternal,  as  well  as  universal.  Though  Rome  was  no  longer 
the  seat  of  empire,  still  the  Empire  itself  was  Roman.  It 
must  live  on,  they  thought,  in  some  form  ;  and  so  they  cast 
about  to  find  a  power  which  should  be  a  fit  possessor  of  the 
world-  wide  sovereignty  no  longer  centred  in  the  city  of  the 
seven  hills.  At  first  the  only  substitute  to  be  found  was 
the  decaying  Empire  of  the  East,  and  for  many  years  the  Ro- 
man world  was  ruled,  in  name  at  least,  from  Constantinople. 
But  in  time  a  more  vigorous  successor  arose  ;  and  from  the 
coronation  of  Charlemagne  as  emperor  by  Pope  Leo  III  in 
the  basilica  of  St.  Peter  at  Rome,  on  Christmas  Day,  A.D. 
800,  the  imperial  power  and  the  world-wide  dominion  in- 
volved in  it  were  held  to  have  passed  to  a  new  line  of  Prank- 
ish sovereigns.  The  Eastern  Empire  put  forth  a  feeble 
protest  ;  but  outside  its  own  rapidly  diminishing  territories, 
none  accepted  its  claim  to  universal  sovereignty.  Por  many 
centuries  the  Romano-German  Empire  was  believed  to  be  a 


THE   HISTORY   OF   INTERNATIONAL   LAW  23 

continuation  of  the  old  dominion  of  the  Csesars,  and  theoreti- 
cally it  succeeded  to  all  the  powers  of  its  predecessors,  with, 
however,  one  great  difference.  It  was  rather  a  world- 
church,  with  a  temporal  ruler  for  the  performance  of  civil 
functions,  than  a  world-empire  with  ecclesiastical  officers  for 
the  performance  of  religious  rites.  The  personal  character 
of  each  emperor  largely  determined  the  nature  and  extent  of 
his  influence  ;  and  gradually  the  papacy,  which  had  been 
the  chief  agent  in  creating  the  new  or  Holy  Roman  Empire, 
became  its  rival  in  pretensions  to  universal  dominion.  The 
theory  of  the  two  vicars  of  God,  closely  united  as  the  joint 
heads  of  His  people  on  earth,  and  the  two  swords,  the  tem- 
poral and  the  spiritual,  wielded  respectively  by  the  emperor 
and  the  pope,  was  soon  weakened  by  efforts  after  supremacy 
on  the  part  of  each  of  the  twin  authorities.  On  the  whole, 
the  pope  prevailed.  The  pretended  gift  by  Constantino  of 
all  the  West  to  the  Roman  pontiff,  and  the  very  real  spirit- 
ual supremacy  exercised  by  the  successors  of  St.  Peter, 
formed  the  base  of  a  claim  "  to  give  and  to  take  away  empires, 
kingdoms,  princedoms,  marquisates,  duchies,  countships,  and 
the  possessions  of  all  men."  And  this  claim  was  not  an  idle 
boast,  as  was  proved  in  1077,  when  the  Emperor  Henry  IV, 
the  most  powerful  prince  in  Christendom,  humbled  himself 
at  Canossa  before  the  great  Pope  Gregory  VII.1 

§18 

Till  there  were  nations,  in  the  sense  of  independent  politi- 
cal communities  possessed  of  sovereign  power,  there  could  be 
no   true   International  Law.     Such  rudiments  The  idea  of  a 
of  it  as  existed  in  the  Middle  Ages  were  re-  common  superior 

died  out  at  the 

strained  in  their  growth,  rather  than  assisted,  Reformation. 
by  the  claims  of  the  pope  and  the  emperor.       As  regards 
other  governors,  these  two  supreme  authorities  were  judges 
and  arbitrators,  not  lawgivers.     Nothing  in  the  shape  of  an 

1  Bryce,   Holy  Roman  Empire,   chs.    IV,   V,   VII,   X,   XII ;  Emerton, 
Mediaeval  Europe,  ch.  VIII. 


24  THE   HISTORY   OP  INTERNATIONAL   LAW 

international  code  was  promulgated  by  them,  though  they 
constantly  decided  particular  cases.  Their  power  was  slowly 
undermined,  first  by  their  quarrels,  and  then  by  other  in- 
fluences. The  corruption  of  the  Roman  curia,  the  diminu- 
tion of  the  empire  in  extent  and  prestige,  the  rising  feeling 
of  nationality,  and  the  revival  of  learning,  helped  to  weaken 
the  majestic  fabric  of  the  mediaeval  theory.  It  fell  with  a 
crash  when,  in  the  storm  of  the  Reformation,  the  two  powers 
which,  according  to  it,  should  have  calmed  the  strife  were 
obliged  to  join  in  the  turmoil.  The  pope  opposed  the 
reformers,  and  the  emperor  took  the  same  side.  Protes- 
tant theologians  poured  scorn  on  papal  claims  ;  Protestant 
jurists  challenged  imperial  authority  ;  and  the  Protestant 
princes  of  what  was  now  the  German  empire  were  often  in 
arms  against  the  emperor.  His  authority  was  thus  set  at 
naught  within  the  limits  of  his  own  dominions,  and  outside 
he  had  long  received  nothing  more  than  mere  honorary  pre- 
cedence as  the  first  potentate  in  Christendom.  Practically 
the  notion  of  a  common  superior  over  states  had  long  been 
obsolete,  and  when  the  attack  on  it  was  joined  by  Jesuit  di- 
vines it  soon  ceased  to  have  even  a  theoretical  existence.1 

§19 

New  principles  were  required  unless  states  were  openly  to 
avow  that  in  their  mutual  dealings  they  recognized  no  law 

For  a  time  there  but  the  right  of  the  strongest  or  the  most 
was  grave  danger  subtle.  For  a  time  there  was  a  great  reaction 

of  utter  lawless- 

ness  in  intcma-      towards   this   view.     In  1513  Machiavclli   set 
forth  in  The  Prince  the  doctrine  that  in  matters 
of  state  ordinary  moral  rules  did  not  apply,  and  his  work 
soon  became  the  political  manual  of  the  rulers  and  generals 
of  the  time.     But  fortunately  for  humanity,  the  tendency  tow- 
ards lawlessness  in  international  transactions  was  arrested 
by  the  publication  in  1625  of  the  great  work  of  Grotius,  De 
Jure  Belli  ac  Pads.     In  this  book  new  ideas  which  had  been 
1  Figgis,  From  Gerson  to  Grotius,  lects.  Ill  and  IV. 


THE   HISTORY   OF   INTERNATIONAL  LAW  25 

floating  about  in  the  atmosphere  of  European  thought  for  a 
century  or  more  were  clearly  stated,  systematically  arranged, 
and  logically  applied  to  the  regulation  of  the  mutual  deal- 
ings of  states.1  Weary  of  anarchy,  Europe  looked  with 
relief  on  a  system  which  promised  to  put  some  curb  on  the 
fierce  passions  of  rough  warriors  and  the  duplicity  of  polished 
statesmen.  Thus  a  real  International  Law  took  the  place  of 
the  shadowy  system  which  had  existed  in  the  Middle  Ages, 
and  new  principles  became  the  foundation  of  a  strong  and 
enduring  fabric.  They  belong  to  our  third  period  ;  but 
before  we  inquire  what  they  were  and  how  they  were  applied, 
it  will  be  well  to  state  very  briefly  the  nature  of  various 
forces  which  helped  to  mould  the  medieval  order,  and  sur- 
vived, sometimes  in  an  altered  form,  to  influence  the  modern 
world. 

§20 

As  the  Roman  Empire  fell,  the  advancing  tide  of  barbarian 
invasion  swept  away  the  bulwarks  of  civilization.  Com- 
merce disappeared  ;  warfare  was  restrained  by  influences  which 

-,  •  ,1  T>     ,  made  for  improve- 

no  rules ;  pirates  swept  the  seas.  But  a  new  ment  during  the 
and  better  order  slowly  emerged  from  the  chaos.  Mlddle  A&es- 
Christian  morality  softened  the  manners  and  mitigated  the 
cruelty  of  the  barbarian  nations  as  one  by  one  they  entered 
the  fold  of  the  Church.  The  study  of  Roman  Law  gave  a 
magazine  of  new  ideas  and  rules  to  statesmen  and  lawyers, 
while  the  growth  of  the  Canon  Law,  which  was  largely 
founded  on  it,  supplied  a  system  of  precepts  for  the  settle- 
ment of  great  moral  questions  as  well  as  purely  ecclesiastical 
affairs.  The  slow  revival  of  commerce  produced  various 
codes  of  maritime  law.  The  most  famous  were  the  Laws  of 
Oleron,  which  ruled  the  sea-traffic  of  the  Atlantic  coasts  of 
Western  Europe,  the  Leges  Wisbuenses,  which  obtained 
currency  in  the  North  Sea  and  the  Baltic,  and  the  Consolato 
del  Mare,  which  regulated  the  commerce  of  the  Mediterra- 
1  Figgis,  From  Gerson  to  Grotius,  lects.  Ill  and_VII. 


26  THE  HISTORY   OF   INTERNATIONAL   LAW 

nean.  Of  these  codes  the  last  was  the  most  important,  and 
it  was  also  the  only  one  that  dealt  with  capture  at  sea  in 
time  of  war.  The  earliest  extant  printed  edition  was  pub- 
lished at  Barcelona  in  1494 ;  but  the  more  ancient  rules  in 
it  were  drawn  up  in  the  same  place  in  the  middle  of  the 
previous  century,  and  even  then  they  did  but  set  forth  older 
custom.1 

The  influence  of  the  maritime  codes,  great  though  it  was, 
cannot  be  compared  in  importance  with  that  of  feudalism, 
the  system  which  associated  the  existence  of  political  rights 
and  duties  with  the  possession  of  land,  though  the  nature 
and  extent  of  them  were  determined  by  contract.  This 
being  the  case,  it  was  an  easy  inference  that  the  ruler  must 
have  far  greater  rights  over  the  land  than  his  subjects,  since 
his  political  functions  were  far  more  important  than  theirs. 
Thus,  from  being  lord  of  his  people,  he  became  lord  of  his 
people's  lands  ;  and  from  that  moment  the  idea  of  terri- 
torial sovereignty  existed  in  germ,  though  its  growth  was 
restrained  by  the  ease  with  which  feudal  notions  lent  them- 
selves to  the  doctrine  of  universal  dominion.  Feudalism 
organized  society  in  a  pyramidal  form.  At  the  base  were  the 
cultivators  of  the  soil.  Next  came  the  mesne  lords,  above 
them  the  tenants-in-chief,  and  above  them  the  king.  But  as 
there  were  many  kings  and  princes  in  Christendom,  it  was 
easy  to  go  a  step  farther,  and  place  at  the  apex  of  the 
pyramid  one  supreme  ruler,  who  was  to  be  lord  over  all  the 
rest.  Throughout  the  greater  part  of  Europe  this  suprem- 
acy in  things  temporal  was  conceded,  as  we  have  already 
seen,  to  the  head  of  the  Holy  Roman  Empire,  though  certain 
outlying  realms  claimed  entire  independence,  and  some  of 
the  stronger  English  kings  insisted  on  the  imperial  character 
of  their  own  royalty.2  But  when  the  direct  power  of  the 

1  For  a  brief  account  of  these  codes,  see  Sir  Travers  Twiss  in  the  Encyclo- 
pedia Britannica,  ninth  ed.,  vol.  VI  (Consulate  of  Sea),  and  vol.   XXI 
(Sea  Laws).    Pardessus  gives  the  codes  in  his  Collection  des  Lois  Maritime*. 

2  Bryce,  Holy  Roman  Empire,  ch.  XII ;  Freeman,   Norman   Conquest, 
vol.  I,  Note  B. 


THE   HISTORY   OP   INTERNATIONAL   LAW  27 

emperors  became  limited  to  Germany,  their  theoretical  su- 
premacy over  other  lands  had  little  practical  effect;  and  at 
the  same  time  they  had  to  struggle  without  much  success 
against  the  attempts  of  the  papacy  to  subject  them  to  its 
authority.  One  result  of  the  conflict  was  the  gradual  decay 
of  the  mediaeval  order  in  the  political  sphere,  till  at  last, 
under  the  influence  of  the  Reformation  and  the  Renaissance, 
the  emperor  lost  even  the  speculative  acknowledgment  of 
his  universal  sway,  and  a  number  of  the  more  civilized  nations 
of  Europe  revolted  against  the  claim  of  the  pope  to  any 
kind  of  supremacy.  At  the  same  time,  feudalism  fell  into 
utter  decay.  But  its  offshoot,  territorial  sovereignty,  grew 
stronger  than  ever.  Not  only  were  the  obstacles  to  its 
progress  which  arose  from  universal  dominion  removed,  but 
the  fresh  impetus  given  by  the  Renaissance  to  the  study  of 
Roman  Law  rendered  it  almost  natural  for  jurists  and  states- 
men to  look  upon  the  monarchical  rulers  who  now  acquired 
full  sovereignty  over  their  respective  realms  as  so  many 
Roman  proprietors,  with  absolute,  not  limited,  ownership 
over  their  territories.  Thus  out  of  the  chrysalis  of  the  old 
order  the  new  was  preparing  to  emerge.  It  was  to  come 
forth  small  and  weak  at  first,  but  possessed  of  elements  of 
strength  which  would  soon  urge  it  into  vigorous  growth. 
It  drew  much  from  Roman  Law,  and  something  from  Canon 
Law.  Territorial  sovereignty  was  the  very  essence  of  its 
being,  and  Christian  morality  nourished  it.  Some  rules  it 
found  already  in  existence,  especially  in  the  departments  of 
diplomacy  and  warfare.  But  though  the  system  of  per- 
manent embassies  was  superseding  the  old  plan  of  sending 
special  envoys  when  some  particular  piece  of  business  re- 
quired attention,  and  a  law  of  capture  at  sea  in  time  of  war 
was  growing  up,  no  developed  code  existed,  even  in  the 
books  of  speculative  writers,  and  the  scanty  rules  that  could 
be  found  were  often  crude  and  generally  incomplete.  The 
time  was  ripe  for  a  great  reformer  who  would  combine  all 
the  scattered  elements  of  strength  which  we  have  seen  to 


28  THE  HISTORY  OF  INTERNATIONAL  LAW 

exist,  and  bind  them  together  by  means  of  some  principle 
which  would  be  generally  accepted  by  the  thinkers  of  his 
day  and  generation.  He  came  at  last  after  a  century  of 
confusion  in  the  person  of  Hugo  Grotius. 


§21 

We  now  reach  our  third  period,  which  extends  from  the 
Reformation  to  the  present  time.  Here  at  last  we  obtain  a  true 
in  the  THIRD  PE-  International  Law,  based  on  the  principle  that 
IMOD— from  the  states  are  separate  and  independent  members  in 

Reformation  to  the  *  L 

present  time — the  a  great  society  controlled  by  no  common  superior, 

ruliiip  principle  is 

that  states  sre  yet  nevertheless  not  lawless,  but  governed  by 
society"  thelmem-  rules  of  conduct  binding  on  all  its  members.  We 
bers  or  which  have  t  t  however,  imagine  that  this  idea  at  once 

mutual  rights  and 

obligations.  took  the  place  of  the  crumbling  mediseval  theory. 

Much ia velli  died  in  1527;  but  his  doctrines  did  not  die  with 
him.  Throughout  the  century  which  followed,  they  held  the 
field.  All  over  Europe  rulers,  emancipated  from  former  re- 
straints and  flushed  with  a  new  sense  of  unlimited  power, 
eagerly  accepted  the  political  philosophy  which  taught  that 
cool  calculation  and  enlightened  self-interest  were  the  only 
guides  in  matters  of  state  policy.  Treachery  and  cruelty 
had  existed  in  abundance  before ;  but  attempts  had  generally 
been  made  to  cloak  them  under  decent  disguises,  and  those 
who  were  guilty  of  them  had  been  looked  upon  as  lawbreakers, 
even  though  they  might  have  been  admired  in  secret  for 
some  splendid  success.  But  now  they  were  openly  applauded; 
and  he  who  maintained  that  in  war  or  diplomacy  what  was 
expedient  at  the  moment  might  be  forbidden  by  higher  con- 
siderations was  accounted  foolish  and  poor-spirited.  Public 
policy  became  not  so  much  immoral  as  unmoral.  It  might 
be  righteous  or  unrighteous  indifferently,  or  rather  such  a 
term  as  righteousness  had  no  meaning  when  applied  to  it, 
just  as  it  could  have  none  in  connection  with  the  cut  of  a 
garment  or  the  flavor  of  a  sauce.  The  results  of  this  banish- 


THE   HISTORY   OF   INTERNATIONAL   LAW  29 

ment  of  morality  from  a  most  important  sphere  of  human 
activity  were  terrible.  Secret  assassination,  treacherous 
attack,  shameless  falsehood,  unscrupulous  bad-faith,  were 
the  common  weapons  of  statecraft  in  the  sixteenth  and  early 
seventeenth  centuries.  The  wars  of  the  period  were  in- 
famous orgies  of  cruelty,  lust,  and  destruction.1  In  time  the 
world  grew  weary  of  the  horrors  which  sprang  from  the  general 
application  of  the  principles  of  Machiavelli  to  negotiations 
and  campaigns,  and  was  disposed  to  listen  when  a  few  isolated 
thinkers  ventured  to  assert  that  there  were  ethical  rules  ap- 
plicable to  the  intercourse  of  states,  though  no  earthly  author- 
ity had  power  to  enforce  obedience  to  their  commands. 

These  forerunners  of  Grotius  began  to  appear  towards  the 
close  of  the  sixteenth  century.  They  came  from  various 
countries,  and  they  took  opposite  sides  in  the  great  religious 
and  political  struggles  of  the  period;  but  they  were  all  alike  in 
this,  that  they  believed  in  what  they  called  a  law  of  nature. 
Three  of  them  are  so  important  that  it  is  necessary  to  call 
special  attention  to  their  works.  First  came  Balthazar  Ayala, 
who  was  what  we  should  call  judge-advocate-general  of  the 
Prince  of  Parma's  army  in  the  Netherlands.  In  1582  he 
published  at  Tournay  his  De  Jure  et  Ojficiis  Bellicis.  In  it 
he  attacks  the  doctrine  that  war  knows  no  law,  and  argues  in 
favor  of  a  jus  naturale,  and  also  a  jus  gentium  established 
by  common  consent.  Next  to  him  in  chronological  order 
came  Albericus  Gentilis,  a  doctor  of  civil  law,  who  left  Italy 
in  consequence  of  his  Protestant  opinions,  and  in  1580  came 
to  Oxford,  where  he  made  a  great  reputation  by  his  lectures, 
and  became  professor  of  civil  law  in  1587.  His  great 
work  was  De  Jure  Belli  Libri  Tres,  published  in  1598.  He, 
too,  maintained  that  there  was  a  law  of  war  which  he  based 
on  natural  reason  and  consent.  In  the  orderly  disposition 
of  his  subject  he  was  superior  to  his  predecessors.  Grotius 
himself  drew  largely  from  him,  and  acknowledged  his  obliga- 
tions, even  while  criticising  style  and  arrangement,  and  com- 

*  Lawrence,  Essays  on  Modern  International  Law,  essay  IV. 


30  THE  HISTORY   OF   INTERNATIONAL  LAW 

menting  on  what  he  deemed  omissions.1  The  last  of  the 
three  was  Francisco  Suarez,  a  Spanish  Jesuit  who  held  the 
post  of  professor  of  theology  in  the  University  of  Coimbra. 
There,  in  1612,  he  published  his  Tractatus  de  Legibus  et  Deo 
Legislatore.  In  it  he  frankly  recognized  the  separation  of 
states,  but  insisted  on  the  moral  unity  of  mankind.  Hence, 
he  argued,  there  must  be  a  society  of  states,  and  a  law  for  it 
supplied  by  natural  reason  and  general  custom,  yet,  like  all 
other  laws,  dependent  on  God  in  the  last  resort.2  We  see 
from  this  brief  summary  that,  in  spite  of  great  differences  in 
detail,  there  was  an  underlying  agreement  in  fundamentals 
among  the  writers  to  whose  works  we  have  alluded.  What 
is  true  of  them  is  true  of  others  of  the  same  period  whose 
obscure  labors  are  being  gradually  revealed  to  the  modern 
world  by  the  researches  of  painstaking  scholars.  They  gained 
recognition  in  the  domain  of  thought.  But  it  was  reserved 
for  Grotius  to  combine  their  principles  into  a  system  which  was 
so  acceptable  to  the  mind  of  Europe  that  thought  was  trans- 
muted into  action,  and  a  new  and  better  international  order 
arose  on  the  ruins  of  the  now  discredited  and  impossible  medi- 
leval  system. 

§22 

Huig  van  Groot,  commonly  called  Hugo  Grotius,  was  born 
at  Delft,  in  the  province  of  Holland,  on  April  10,  1583.  He 
The  career  of  grew  up  amid  the  soul-stirring  scenes  of  the 
Grotius,  the  great  long  struggle  of  his  countrymen  with  Spain  on 

mrent  in  effecting  °  °f  J 

this  change  in  behalf  of  their  religion,  their  local  liberties,  and 
their  national  independence.  Scarcely  had  he 
reached  manhood  when  he  won  fame  for  himself  as  a  scholar 
and  a  jurist,  and  was  raised  to  public  office.  Distinction  in 
the  field  of  authorship  came  to  him  at  an  early  period  ;  and 
the  encyclopaedic  character  of  his  learning  is  shown  by  the 

1  De  Jure  Belli  ac  Facia,  Prolegomena,  §  38. 

2  Figgis,  From  Oerson  to  Grotius,  lect.  VI ;  Westlake,  Chapters  on  Inter- 
national Law,  chs.  II,  III. 


THE   HISTORY   OF  INTERNATIONAL   LAW  31 

great  variety  of  subjects  he  handled.  He  wrote  well  and 
effectively  on  theology,  history,  the  classics,  jurisprudence, 
and  contemporary  politics.  He  even  produced  poetry  in  the 
Flemish  vernacular.  Before  he  reached  the  prime  of  life,  the 
part  he  took  in  civil  disputes  led  to  his  arrest  in  1618  by 
order  of  Prince  Maurice  of  Nassau  and  the  States-general. 
He  was  condemned  to  perpetual  imprisonment.  But,  by  the 
aid  of  his  devoted  wife,  he  escaped  in  1621  from  his  place  of 
confinement,  in  a  box  which  was  supposed  to  contain  the 
books  he  had  borrowed  from  his  friends.  After  many  ad- 
ventures he  reached  Paris,  where  he  lived  for  a  time  in 
great  poverty,  on  a  pension  granted  to  him  by  the  French 
king,  but  very  irregularly  paid.  In  1635  he  entered  into 
the  diplomatic  service  of  Queen  Christina  of  Sweden,  and 
became  her  ambassador  at  Paris.  After  serving  the  Swedish 
government  for  several  years,  he  was  recalled  in  1645.  A 
visit  to  Stockholm  was  the  next  event  in  his  career,  and  it 
was  followed  by  a  voyage,  in  the  course  of  which  he  suffered 
shipwreck.  Though  he  reached  land  in  safety,  the  cold  and 
exposure  undermined  his  strength,  and  he  died  at  Rostock 
on  August  29,  1645. 

The  work  on  which  rests  the  claim  of  Grotius  to  the 
veneration  of  mankind  is  his  De  Jure  Belli  ac  Pads.  It  was 
published  in  Paris  in  1625,  when  his  poverty  was  so  great 
that  he  could  with  difficulty  find  the  necessaries  of  life  for 
his  children.  His  reward  as  author  was  two  hundred  copies, 
some  of  which  he  was  able  to  sell ;  but  it  is  said  that  the 
money  he  thus  obtained  did  not  suffice  even  to  pay  the  ex- 
penses he  had  incurred.  The  book,  however,  attracted  atten- 
tion immediately  among  the  learned,  and  very  soon  became  a 
power  among  statesmen  and  thinkers.  Gustavus  Adolphus 
carried  a  copy  about  with  him  on  his  campaigns.  In  the 
Peace  of  Westphalia  its  leading  principles  were  recog- 
nized, and  became  the  foundations  of  the  new  public  order  of 
Europe,  which  dates  from  the  great  settlement  of  1648. 
And  when  learning  began  to  revive  after  the  awful  ravages 


32  THE   HISTORY  OF   INTERNATIONAL   LAW 

of  the  Thirty  Years'  War,  the  Grotian  system  was  taught  as 
public  law  in  the  University  of  Heidelberg. 

§23 

How  was  it  possible  for  a  poor  scholar,  exiled  from  his 

native  land,  and  neglected  in  the  country  of  his  adoption,  to 

give  a  new  direction  to  the  ideas  of  Western 

Causes  of  the  in-  .  ,  . 

fluence  exercised  Europe  in  3,  most  important  department  01 
human  thought?  The  answer  to  this  ques- 
tion is  threefold.  In  the  first  place,  the  evils  due  to  the 
banishment  of  morality  from  international  concerns  had 
become  so  foul  that  they  stunk  in  the  nostrils  of  all  but  the 
vilest  of  mankind.  The  very  cause  which  impelled  Grotius 
to  write  impelled  men  to  heed  his  words.  He  says  in  an  often 
quoted  passage,  "  I  saw  prevailing  throughout  the  Christian 
world  a  license  in  making  war  of  which  even  barbarous 
nations  would  have  been  ashamed.  Recourse  was  had  to 
arms  for  slight  reasons  or  no  reason  ;  and  when  arms  were 
once  taken  up,  all  reverence  for  divine  and  human  law  was 
thrown  away,  just  as  if  men  were  henceforth  authorized  to 
commit  all  crimes  without  restraint." 1  When  his  book  was 
published,  the  worst  horrors  of  the  Thirty  Years'  War  had 
not  taken  place.  The  sack  of  Magdeburg,  the  tortures,  the 
profanities,  the  devastations,  the  cannibalism,  which  turned 
the  most  fertile  part  of  Germany  into  a  desert,  w'ere  yet  to 
horrify  the  world.  But  all  this  followed  in  a  few  years ; 
and  men  who  had  lived  through  a  whole  generation  of  war- 
fare fitter  for  Iroquois  braves  than  Christian  warriors  were 
glad  to  listen  when  one  of  the  greatest  scholars  and  jurists 
of  the  age  told  them  there  was  a  law  that  curbed  the 
ferocity  of  soldiers  and  bade  statesmen  follow  the  paths  of 
honor  and  justice.  Secondly,  Grotius  brought  to  the  per- 
formance of  his  great  task  all  the  resources  of  a  most  acute 
intellect  and  a  most  marvellous  erudition.  As  a  scholar  he 
1  De  Jure  Belli  ac  Pads,  Prolegomena,  §  28. 


THE   HISTORY   OF   INTERNATIONAL   LAW  33 

was  uncritical,  like  all  the  scholars  of  the  early  seventeenth 
century,  but  the  range  of  his  learning  was  enormous.  He 
piled  precedent  on  precedent,  and  gathered  instances  from 
all  history,  sacred  and  profane.  We  have  been  brought  up 
under  the  influence  of  the  doctrine  of  development,  and  it  is 
not  difficult  for  us  to  see  that  he  might  with  advantage  have 
weighed  his  authorities  more  carefully  and  rejected  many  of 
the  earlier  and  more  barbarous  ones.  But  we  must  not  for- 
get that  he  digested  his  vast  mass  of  matter  into  an  intelli- 
gible system,  and  gave  it  to  the  world  in  a  form  that 
attracted  men  of  action  as  well  as  students  and  thinkers. 
Thirdly,  Grotius  was  in  a  very  true  sense  the  heir  of  the 
Middle  Ages.  Though  his  system  substituted  for  the  world- 
church,  which  was  also  the  world-empire,  an  order  based  on 
wholly  different  considerations,  entirely  alien  to  the  medi- 
aeval mind,  what  he  completely  and  finally  destroyed  was 
already  discredited,  whereas  he  used  for  constructive  pur- 
poses many  of  the  materials  that  had  been  regarded  with 
approval  and  respect  by  the  best  minds  of  the  preced- 
ing epoch.  The  schoolmen  and  the  canonists  reverenced 
Roman  Law.  Grotius  drew  from  it  whole  categories  of 
international  rules.  The  feudal  lawyers  connected  political 
power  and  land.  Grotius  regarded  sovereignty  as  territo- 
rial. Theologians,  jurists,  and  philosophers  had  for  centuries 
appealed  to  a  law  of  nature.  Grotius  maintained  that  it 
regulated  the  intercourse  of  states.  The  secret  of  his  success 
lies  in  his  conservative  use  of  approved  ingredients.  But 
out  of  them  he  compounded  a  radical  remedy  for  an  evil 
acknowledged  to  be  unbearable. 

§24 

There  can  be  no  doubt  that  the  theory  of  a  law  of  nature 
was  the  most  powerful  influence  in  winning  acceptance  for 
the  true  International  Law  which  took  the  place  of  the  occa- 
sional and  often  disregarded  decisions  of  a  shadowy  univer- 


34  THE  HISTORY   OF   INTERNATIONAL   LAW 

sal  sovereign.     When  for  the  world-state  which  had  ceased 

to  control  even  the  Germanic  realms  was  substituted  a  large 

number  of  territorial  states  becoming  more  independent  every 

day,  either  they  must  live  like  wild  beasts  with- 

The  law  of  nature  '*  .       .  . 

M  conceived  by  out  law,  or  some  principle  must  be  found  which 
could  be  made  to  supply  them  with  laws  in  the 
absence  of  a  common  superior.  Grotius  proclaimed  that  the 
latter  alternative  was  the  only  one  fitted  for  human  beings. 
That  society,  he  argued,  which  includes  all  mankind  cannot 
exist  without  the  recognition  of  mutual  rights.  Rights 
common  to  all  must  be  conferred  by  something  wider  in 
its  scope  than  the  statutes  and  ordinances  of  a  particular 
state.  They  are  derived  from  natural  law,  which  is  "  the 
dictate  of  right  reason,  indicating  that  any  act,  from  its 
agreement  or  disagreement  with  the  rational  nature,  has  in 
it  a  moral  turpitude  or  a  moral  necessity."  This  law  is  im- 
mutable. God  Himself  cannot  change  it,  any  more  than  he 
can  make  twice  two  to  be  other  than  four.  Its  precepts 
command  what  is  just,  and  therefore  have  God's  approval. 
In  that  sense  they  may  be  considered  as  divine  law,  but  in 
no  other.  Positive  divine  law,  properly  so  called,  is  insti- 
tuted by  God,  and  what  it  commands  is  just  because  He 
commands  it.  Natural  law  is  independent  of  institution, 
human  or  divine.  It  recognizes  the  inherent  qualities  of 
actions  as  good  or  bad.  Its  principles,  "if  you  attend  to 
them  rightly,  are  of  themselves  patent  and  evident,  almost 
in  the  same  way  as  things  which  are  perceived  by  the  ex- 
ternal senses."  They  apply  to  states  as  well  as  to  indi- 
viduals ;  for  the  same  right  reason  that  shows  a  man, 
when  he  reflects,  what  is  in  accord  with  his  rational  and 
social  nature,  also  gives  similar  knowledge  to  nations  and 
their  rulers,  or  at  least  to  the  more  civilized  among  them.1 

1  Grotius,  De  Jure  Belli  ac  Pacts,  Prolegomena,  §§  30, 39,  and  bk.  I,  ch.  i. 
10,  12,  14,  15,  17. 


THE   HISTORY   OF   INTERNATIONAL  LAW  35 

§25 

It  is  easy  for  us,  who  have  entered  into  the  labors  of 
Bentham  and  the  modern  school  of  analytical  jurists,  to 
criticise  this  theory.  We  can  see  at  once  that  it  confuses 
what  is  with  what  ought  to  be.  In  it  the  real  „ 

0  The  theory  of  a 

and  the  ideal  are  blended  to  the  detriment  of  law  of  nature 
both.  We  regard  law  as  a  definite  and  posi- 
tive rule  of  action  which  is  observed  among  men  in  a  greater 
or  less  degree,  and  enforced  by  appropriate  means.  It  is  an 
institution,  and  like  other  institutions  it  may  be  criticised 
and  altered.  We  speak  of  good  laws  and  bad  laws,  thus 
testifying  to  our  belief  that  there  is  a  standard  of  right  and 
wrong  apart  from  law  and  above  law.  Yet  it  is  this  stand- 
ard which  Grotius  called  natural  law,  and  by  so  doing  in- 
troduced confusion  into  his  reasoning.  For,  since  we  apply 
moral  judgment  to  law,  the  law  which  is  judged  cannot  be 
the  same  as  the  standard  by  which  we  judge  it.  It  is  law 
because  it  is  a  rule  of  conduct  laid  down  and  received 
among  men,  not  because  it  embodies  justice  in  its  commands. 
We  understand,  and  indeed  assert,  that  law  is  not  good 
unless  it  does  this  ;  but  we  add  that,  even  if  it  does  not,  it 
remains  law  until  it  is  replaced  by  some  other  and,  it  is  to 
be  hoped,  better  rule.  Grotius  failed  to  make  this  distinc- 
tion between  fact  and  aspiration,  and  in  consequence  in- 
volved himself  in  serious  contradictions.  Hardly  had  he 
likened  the  process  whereby  man  is  supposed  to  discover 
natural  law  to  sense-perception,  before  we  find  him  limiting 
those  who  are  capable  of  discovering  it  to  the  more  civilized 
nations,  and  ruling  out  the  more  savage ;  whereas,  not  only 
do  savages  possess  senses,  but  their  senses  are  generally  more 
acute  than  those  of  civilized  men.1  When  he  is  reasoning 
from  his  own  conception  of  the  rational  and  social  nature  of 
man,  the  law  of  nature  is  high  and  holy.2  When  he  is 

1  De  Jure  Belli  ac  Pads,  Prolegomena,  §  39,  and  bk.  I,  ch.  i,  12. 
2/6td.,bk.  I,  ch.  i,  10. 


36  THE   HISTORY   OF   INTERNATIONAL  LAW 

making  deductions  from  the  opinions  and  practices  of  man- 
kind, it  authorizes  slavery  and  does  not  condemn  polygamy.1 
In  his  survey  of  ancient  history  he  sees  a  vast  number 
of  divergent  customs,  and  is  reduced  to  all  sorts  of  shifts 
and  subtleties  to  reconcile  their  variety,  and  the  cruel  and 
abominable  character  of  some  of  them,  with  his  own  doctrine 
of  the  immutability  of  natural  law,  and  the  perception  by 
every  unsophisticated  human  intelligence  of  the  intrinsic 
qualities  of  actions  as  good  or  bad.  If  his  view  were  correct, 
there  would  always  have  been  a  general  agreement  as  to  the 
fundamental  principles  and  more  important  precepts  of  the 
law  of  nature.  But  nothing  of  the  kind  has  ever  existed. 
Jurists  and  philosophers  have  differed  hopelessly  among 
themselves,  while  the  great  mass  of  mankind  have  not  even 
pretended  to  understand  the  matter. 

The  theory  of  a  law  of  nature  will  not  bear  analysis. 
Nor  is  it  helped  by  the  further  theory  of  a  state  of  nature, 
which  was  held  along  with  it  by  Pufendorff  2  and  Vattel,3 
and  other  successors  of  Grotius.  They  believed  that  in  the 
infancy  of  the  human  race  each  individual  was  free  to  do 
what  was  right  in  his  own  eyes,  since  men  had  no  govern- 
ment over  them  to  set  them  laws.  In  this  condition  they 
obeyed  the  dictates  of  nature,  that  is  to  say,  they  observed  a 
few  just  and  simple  rules  discovered  by  their  own  unassisted 
reason.  States,  having  no  common  superior,  were  in  the 
same  condition  as  men  before  the  establishment  of  political 
society,  and  were  therefore  bound  to  regulate  their  conduct 
towards  one  another  by  the  law  of  nature.  These  state- 
ments are  wholly  unhistorical.  There  never  was  a  time 
when  each  man  lived  his  own  individual  life,  without  con- 
nection with  his  fellows,  and  without  feeling  the  yoke  of  any 
external  authority.  The  more  we  are  able  to  discover  about 
the  facts  of  primitive  society,  the  more  clear  does  it  become 

1  De  Jure  Belli  ac  Pads,  bk.  II,  ch.  v,  9,  27. 

2  De  Jure  Natural  et  Gentium,  bk.  II,  ch.  n. 
8  Droit  des  Gens,  Prfiliminaires,  §§  4-12. 


THE   HISTORY   OP  INTERNATIONAL  LAW  37 

that  primeval  man  was  subject  to  numerous  and  galling 
restrictions  in  every  department  of  life.  Custom  and  super- 
stition environed  him  like  an  atmosphere.  He  could  not 
escape  from  their  pressure,  and  he  had  no  wish  to  do  so. 
The  picture  of  the  primitive  savage  as  a  being  absolutely 
free  to  follow  his  own  impulses  and  determine  his  own  lot  is 
historically  false,  just  as  the  picture  of  him  as  an  individual 
endowed  with  lofty  sentiments,  and  exercising  a  calm  and 
passionless  reason  to  discover  the  best  rules  of  human  conduct, 
is  psychologically  foolish. 

§26 

But  untenable  as  is  the  theory  of  a  law  of  nature,  whether 
or  no  it  be  linked  with  the  twin  theory  of  a  state  of  nature, 
it  performed  a  great  service  to  humanity  when 
it   induced  the   statesmen   and   rulers   of   the  ^nin^acceptance 
seventeenth  century  to   accept   the   system  of  *»•  an  improved 

»  r  j  International  Law. 

International  Law  put  forth  by  Hugo  Grotius. 
They  had  all  been  taught  that  natural  law  was  specially 
binding  in  its  character,  and  believed  that  men  could  not 
violate  it  without  sinking  to  the  level  of  the  beasts.  When 
they  found  it  applied  by  a  great  thinker  to  the  regulation 
of  international  relations,  and  discovered  that,  so  applied,  it 
forbade  the  practices  of  which  they  were  more  than  half 
ashamed,  and  placed  restraints  upon  that  unchecked  fury 
which  had  turned  central  Europe  into  a  veritable  pande- 
monium, they  were  disposed  to  welcome  and  adopt  it.  The 
times  were  out  of  joint.  The  old  principles  which  had  regu- 
lated the  state  relations  of  mediaeval  Christendom,  were  dead. 
The  attempt  to  get  on  without  any  principles  at  all  had  been 
a  costly  and  blood-stained  failure.  New  principles  were  pre- 
sented, clothed  with  all  the  authority  of  admitted  theory. 
It  is  not  to  be  wondered  at  that  they  were  eagerly  received, 
and  became  in  a  short  time  the  foundations  of  a  new  inter- 
national order.  In  so  far  as  they  were  theoretical,  and  con- 
nected with  nature  and  natural  law,  we  have  examined  them 


38  THE  HISTORY   OF    INTERNATIONAL   LAW 

and  found  them  to  be  indefensible.  But,  as  we  have  just 
seen,  their  immediate  practical  effect  was  beneficial  in  the 
highest  degree. 

§27 

Fortunately,  the  Grotian  system  did  not  collapse  when  the 
theory  of  a  state  and  a  law  of  nature  lost  credit.  Its  own 
excellence,  and  the  good  work  it  was  doing  in 
S  «m  tafnedT  the  world,  would  in  all  probability  have  pre- 
^teh^uri"orted  served  it  from  such  a  fate  in  any  case;  but 
it  when  the  first  ^hev  were  powcrf ullv  aided  by  the  fact  that  its 

failed.    Two  J  .11  i  «      • 

senses  of  jus  author  had  provided  a  second  support  for  it  in 
his  doctrine  of  general  consent  as  a  source  of 
law.1  With  natural  law,  which  he  held  to  exist  without 
a  law-giving  authority,  he  contrasted  positive  or  instituted 
law,  which  proceeded  from  some  external  source.  This 
positive  law  he  divided  into  divine  law,  civil  law,  and  jus 
gentium,  or  the  law  of  nations.  The  first  needs  no  explana- 
tion. By  civil  law  Grotius  meant  the  law  of  a  state,  set  to 
its  people  by  the  proper  authority  within  it.  Jus  gentium  he 
defined  as  "  that  law  which  has  received  an  obligatory  force 
from  the  will  of  all  nations,  or  of  many."  Wide  and  per- 
sistent usage,  and  the  consent  of  those  who  made  the  subject 
their  study,  were  to  him  proofs  of  the  will  of  the  society 
of  nations.2  The  rules  he  could  generalize  from  such  in- 
stances he  regarded  as  the  instituted  law  of  nations,  though 
he  strove  to  mitigate  the  harshness  and  ferocity  of  many  of 
them  by  restraints  (temperamenta)  based  on  justice,  magna- 
nimity, and  Christian  charity.3 

§28 
TWO  senses  of  jus       Here  it  is  necessary  to  point  out  that  the 

gentium.  _,  . 

urotian  sense  of  jus  gentium  is  not  exactly  that 
in  which  the  great  Roman  jurists  used  the  phrase.     When  . 

1  De  Jure  Belli  ac  Pads,  Prolegomena,  §§  17,  40. 

2  Ibid.,  bk.  I,  ch.  i,  14,  16.         «  Ibid.,  bk.  Ill,  ch.  x,  et  seq. 


THE   HISTORY  OF   INTERNATIONAL  LAW  39 

Gaius  defined  it  as  what  natural  reason  establishes  among 
all  men  (Quod  vero  naturalis  ratio  inter  omnes  homines  consti- 
tute1*), and  Tribonian  repeats  the  definition,2  they  seem  to  be 
describing  what  Grotius  meant  by  natural  law.  But  they 
both  go  on  to  state  that  the  rules  prescribed  by  natural 
reason  are  observed  by  all  nations  alike,  and  to  divide  the 
laws  of  the  Roman  people  into  a  portion  peculiar  to  them- 
selves, called  jus  civile,  and  a  portion  common  to  them  and 
other  peoples,  called  jus  gentium.  Thus  the  Roman  law  of 
nations  had  two  aspects.  On  one  side  it  appeared  as  the 
dictate  of  enlightened  reason,  and  on  the  other  as  the  prod- 
uct of  common  consent,  the  two  being  unified  by  the  belief 
that  general  agreement  could  spring  from  nothing  but  human 
nature.  We  say  human  nature  advisedly,  because  Ulpian 
failed  in  his  attempt  to  set  up  a  jus  naturale  apart  from  the 
jus  gentium,  by  elevating  instincts  common  to  men  and  the 
brutes  into  a  source  of  law.3  Ignoring  this  theory,  the  phil- 
osophical jurists  of  ancient  Rome  identified  the  jus  naturale 
and  the  jus  gentium.  But  Grotius  did  nothing  of  the  kind. 
To  him  natural  law  was  a  thing  apart,  depending  for  its 
reception  on  the  enlightenment  of  human  reason,  whereas 
the  law  of  nations  derived  its  binding  force  from  the  dicta- 
torship of  human  will.  His  jus  gentium  was  positive  law, 
instituted  by  the  consent  of  all  nations,  or  at  least  the  more 
advanced  among  them,  and  applicable  to  the  affairs  that 
arose  among  them  in  the  society  of  which  they  were  units. 
Roman  jus  gentium  was  a  portion  of  the  positive  law  of  the 
Roman  Empire,  binding  individuals  primarily,  though  not 
exclusively,  and  deriving  its  authority  not  from  the  consent 
of  nations  considered  as  political  organizations,  but  from  the 
agreement  of  civilized  and  reasonable  individuals  all  over 
the  then  known  world. 

1  Gaius,  bk.  I,  tit.  1. 

8  Justinian,  Institutes,  bk.  I,  tit.  u,  1. 

6  Digest,  bk.  I,  tit.  1,  3,  4. 


40  THE   HISTORY  OF   INTERNATIONAL  LAW 

§29 

We   must  not   forget  that   in   the  great  book  of  Hugo 

Grotius  jus  gentium  stands  for  a  portion  only  of  the  rules 

that    he   elaborated    for    the   conduct   of    the 

The  growing  recog-  t 

nition  of  the  fact    affairs   of   the    society   of   nations.      But    his 

that    International  -       ,  ,  ,.  ,  ,, 

Law  rests  on  the     successors  soon  used  the  phrase  lor  the  whole 

consent  of  nations.     Q£    them^    thougn    ag    time     went    Qn    tney    were 

put  to  strange  shifts  in  order  to  reconcile  the*  belief  in  a 
sacrosanct  and  universally  obligatory  law  of  nature  with 
their  growing  perception  of  the  truth  that  the  slowly 
increasing  body  of  rules  which  civilized  states  recognized  as 
binding  in  their  mutual  intercourse  really  rested  on  general 
consent.  This  is  shown  by  the  contrast  between  the  views 
of  two  of  the  most  influential  of  these  jurists  —  Samuel 
Pufendorff,  who  flourished  immediately  after  Grotius,  and 
Emerich  de  Vattel,  who  wrote  in  the  middle  of  the  next 
century.  The  former  developed  and  criticised  the  Grotian 
system  in  a  series  of  works  published  between  1661  and 
1694.  He  taught  that  the  law  of  nations  was  that  part  of 
the  law  of  nature  which  dealt  with  the  relations  of  states 
to  one  another,  and  identified  the  law  of  nature  with  the 
law  of  God,  in  so  far  as  the  latter  was  discoverable  by 
reason  from  the  tendency  of  actions  to  promote  the  happi- 
ness of  society.  But  he  expressly  stated  his  disbelief  in  any 
positive  or  voluntary  law  of  nations,  though  his  recognition 
of  the  principle  of  utility  might  perhaps  be  held  to  have 
provided  a  loophole  for  the  introduction  of  general  consent 
as  a  source  of  law.1  The  latter,  who  published  his  great 
book  in  1758,  taught  that  the  law  of  nations  was  discovered 
by  a  judicious  and  rational  application  of  the  principles  of 
the  law  of  nature  to  the  affairs  and  conduct  of  nations  and 
sovereigns.  He  adopted  the  statement  of  Pufendorff  and 
Hobbes2  that  the  law  of  nations  was  the  law  of  nature 

1  Pufendorff,  De  Jure  Nature  et  Gentium,  bk.  I,  ch.  11,  6,  and  bk.  II, 
ch.  in,  20-23. 

2  Hobbes,  De  Cive,  ch.  xiv,  4. 


THE   HISTORY   OF   INTERNATIONAL  LAW  41 

applied  to  nations.  But  he  went  on  to  explain  that,  though 
this  was  what  he  called  a  necessary  law  of  nations,  always 
obligatory  in  the  forum  of  conscience,  yet  there  was  in 
addition  a  positive  law  of  nations,  based  on  their  consent, 
whether  presumed,  express,  or  tacit,  and  this  positive  and 
consensual  law  was  to  be  observed  as  long  as  it  did  not 
violate  the  precepts  of  the  natural  or  necessary  law.1 

Here  we  get  a  classification  rendered  unscientific  and  ob- 
scure by  that  mixed  mode  of  thought  which  juggles  uncon- 
sciously with  the  word  law.  A  law  is  at  one  moment  a  rule 
generally  observed  among  men,  at  another  a  rule  the  observ- 
ance of  which  is  deemed  highly  desirable.  What  is  discerned 
to  be  good  is  deemed  to  have  the  same  imperative  authority  as 
what  is  ordered  to  be  done.  What  ought  to  be  is  regarded 
as  equivalent  to  what  is.  But  if  we  translate  the  language 
of  Vattel  into  the  terms  used  by  most  of  the  modern  English- 
speaking  exponents  of  the  science  he  helped  to  build  up,  it 
works  out  somewhat  as  follows.  Certain  rules  for  the  guid- 
ance of  states  in  their  relations  with  one  another  have  grown 
up  gradually,  and  meet  with  general  acceptance.  There- 
fore every  member  of  the  great  society  of  civilized  nations 
is  bound  to  obey  them,  in  the  same  way  as  every  one  who 
belongs  to  a  club  is  bound  to  observe  its  rules,  and  con- 
form to  the  etiquette  that  governs  the  intercourse  of  its 
members.  But  enlightened  reason  sees  that  many  improve- 
ments might  be  made  in  the  international  code,  and  even  in 
the  nature  of  the  society  controlled  by  it.  It  thereupon  sets 
up  an  ideal  to  be  approached,  and  provides  incentives  for 
movement  towards  it. 

Explained  and  transmuted  in  this  way,  the  system  cor- 
responds to  social  and  moral  facts  in  the  sphere  of  inter- 
national relations.  The  ethical  standard  is  the  natural  law 
of  Grotius,  the  necessary  law  of  nations  of  Vattel.  The 
rules  of  International  Law  as  we  find  them  at  any  given 
moment  are  the  instituted  law  of  nations  of  Grotius,  the 
1  Vattel,  Droit  des  Gens,  Pr<§liminaires,  §§  6-9,  27-28. 


42  THE  HISTORY   OF   INTERNATIONAL  LAW 

positive  law  of  nations  of  Vattel.  Since  the  time  of  the 
latter  writer  the  distinction  we  have  tried  to  draw  between 
the  ideal  and  the  real  has  been  slowly  emerging.  The  old 
speculations  about  the  law  and  the  state  of  nature  were  first 
relegated  to  prefaces  and  introductory  chapters,  and  then 
left  out  altogether,  while  the  principles  and  rules  of  the  law 
of  nations  were  drawn  with  constantly  increasing  frequency 
from  precedents  and  agreements.  To  obviate  the  difficulties 
which  sometimes  arose  from  the  various  meanings  oijus  gen- 
tium, droit  des  gens,  law  of  nations,  the  phrase  International 
Law  was  invented  and  generally  adopted.  It  is  not  perfect, 
as  we  have  seen  ; l  but  it  is  a  great  improvement  on  its  prede- 
cessors. Dr.  Westlake  has  well  pointed  out  that  the  old  en- 
deavor to  express  by  one  word  or  phrase  the  two  notions  of 
what  is  just  and  what  is  instituted  is  still  to  be  found  in  the 
French  droit  and  the  German  recht.2  But  the  English  word  law 
is  free  from  this  ambiguity,  since  we  use  it  to  signify  rules  of 
conduct  laid  down,  enforced,  and  observed  among  men,  whether 
or  no  we  deem  them  just  and  good.  We  must  take  care  to 
keep  its  meaning  clear,  though  we  need  to  guard  with  equal 
care  against  the  error  of  considering  that  law  is  necessarily 
final.  It  must  always  be  tried  by  ethical  considerations, 
and  brought  up  to  the  ideal  standard,  which  becomes  higher 
and  higher  with  the  expansion  of  man's  spiritual  and  intel- 
lectual powers. 

§30 

The  theory  of  a  law  of  nature  did  enormous  service  in 
securing  the  consent  of  nations  to  rules  of  conduct  far  more 
Growth  of  the  just  and  merciful  than  any  they  would  have 
consensual  theory.  foiiowed  without  it.  Having  attained  this  end, 
its  work  was  done  ;  and,  as  its  unhistorical  and  unphilosophi- 
cal  character  became  evident,  it  could  be  superseded  by  the 
principle  that  International  Law  rested  on  general  consent, 
not  only  without  harm  but  with  positive  advantage.  For 

1  See  §  7. 

8  Westlake,  International  Law,  part  I,  pp.  9-11. 


THE   HISTORY   OF   INTERNATIONAL   LAW  43 

while  the  new  theory  avoided  the  confused  modes  of  thought 
which  vitiated  its  predecessor,  by  calling  attention  to  the 
supreme  importance  of  common  consent,  it  emphasized  the 
need  of  educating  general  opinion,  so  that  it  might  demand 
from  time  to  time  improvements  in  practice  and  in  the  rules 
based  thereon.  At  first  the  only  kind  of  general  assent  that 
could  be  shown  was  tacit.  For  instance,  in  the  middle  of  the 
eighteenth  century  it  became  apparent  to  careful  observers 
that  devastation  of  territory  and  slaughter  of  its  peaceful  in- 
habitants had  occurred  very  rarely  in  recent  wars  between 
civilized  powers,  though  it  had  been  common  enough  a  hun- 
dred years  before,  during  the  Thirty  Years'  War.  Accord- 
ingly we  find  Vattel  laying  down  in  1758  the  rule  that 
ravaging  was  forbidden  by  International  Law,  unless  it  was 
resorted  to  for  the  purpose  of  chastising  cruel  barbarians  like 
the  pirates  of  Algiers,  or  protecting  one's  own  territory  from 
invasion.1  Here  we  have  an  instance  of  a  new  rule  based  on 
what  Grotius  calls  "  the  will  of  all  nations,  or  of  many."  2 
There  were,  of  course,  treaties  in  abundance,  and  some  of 
them  contained  rules  to  which  the  signatory  powers  by  the 
mere  act  of  signing  gave  an  express  consent.  But  these  rules 
bound  the  parties  only.  They  were  partial,  not  general,  and 
therefore  could  not  be  considered  as  part  of  the  law  of  nations. 
The  age  of  express  consent  to  general  rules  was  coming,  but 
it  had  not  yet  arrived.  It  was  reached  when  diplomatic  acts 
were  negotiated  for  the  purpose  of  defining  and  regulating 
in  certain  circumstances  the  conduct  of  the  whole  body  of 
civilized  states,  or  at  any  rate  of  all  who  really  counted 
when  such  circumstances  arose.  It  is  a  little  difficult  to  de- 
termine with  absolute  exactness  the  nature  of  these  law- 
making  treaties,  as  they  have  been  appropriately  called.3 
Before  that  majestic  name  can  be  bestowed  with  full  propriety 
on  an  international  instrument,  a  certain  scope  and  breadth 

1  Droit  des  Ge.ns,  bk.  Ill,  ch.  ix,  §  167. 

2  De  Jure  Belli  ac  Pads,  bk.  I,  ch.  i,  14. 

8  Oppenheim,  International  Law,  vol.  I,  §§  18,  492,  555-668. 


44  THE   HISTORY   OP  INTERNATIONAL  LAW 

must  characterize  its  provisions.  In  one  sense  any  agree- 
ment between  two  powers  to  act  in  future  towards  each 
other  in  a  certain  way  may  be  termed  law-making,  because 
it  sets  a  rule  to  the  parties  immediately  concerned.  But  it 
can  hardly  be  proposed  to  apply  such  a  title  to  the  ordinary 
bilateral  treaties  that  are  made  almost  every  day.  At 
least  a  group  of  powers  must  be  affected  ;  and  it  seems  best 
to  say  that  a  diplomatic  agreement  is  not  law-making  unless 
it  contemplates  a  general  acceptance  of  its  precepts,  whether 
they  make  new  rules  or  change  rules  already  existing.  It  is 
in  this  sense  that  the  epithet  is  here  used.  We  will  call  that  a 
law-making  treaty  which  lays  down  rules  of  international 
conduct  meant  to  be  universal  in  their  scope.  Before  it  can 
bear  the  name,  it  must  secure  observance  from  the  more  im- 
portant of  the  powers,  and  aim  at  securing  observance  from 
all.  A  reasonable  time  must  be  given  ;  but  if  it  ultimately 
fails  in  gaining  the  adhesion,  express  or  tacit,  of  the  great 
majority  of  civilized  states,  the  mere  generality  of  its  purpose 
will  not  suffice  to  raise  it  to  the  dignity  of  an  international  en- 
actment. For  instance,  the  Treaty  of  Washington  of  1871 
cannot  be  ranked  among  the  law-making  treaties,  though 
the  contracting  powers,  Great  Britain  and  the  United  States 
of  America,  agreed  not  only  to  observe  as  between  themselves 
the  three  rules  contained  in  its  sixth  article,  but  also  to 
bring  them  to  the  notice  of  other  powers  with  a  view  to  their 
general  reception.  But  this  has  never  been  done,  partly 
because  the  two  governments  were  not  able  to  interpret  the 
rules  in  the  same  way,  and  partly  because  it  was  known 
that  several  important  states  would  decline  to  accept  them.1 
When  all  the  stipulations  of  a  treaty  are  intended  to  bind 
the  whole  body  of  civilized  states,  it  is  a  pure  law-making 
treaty.  When  some  only  are  of  this  nature,  while  others 
refer  to  special  and  particular  matters,  such  as  a  revision  of 
boundaries  or  a  settlement  of  fishery  disputes,  it  is  a  law- 
making  treaty,  but  it  is  not  a  pure  law-making  treaty.  This 
1  Moore,  International  Arbitration,  vol.  I,  pp.  667-678. 


THE   HISTORY    OF   INTERNATIONAL   LAW  45 

is  the  case  with  the  Treaty  of  Berlin  of  1878.  It  added  Servia 
and  Roumania  to  the  number  of  independent  states  that 
make  up  the  family  of  nations.  But  it  was  full  of  stipula- 
tions with  regard  to  minor  questions,  of  interest  only  to  the 
powers  immediately  concerned  with  them. 

§31 

The  pure  law-making  treaties  constitute  a  statute  book 
of  the  law  of  nations.  The  first  of  them  is  the  Declaration 
of  Paris  of  1856.  It  laid  down  four  rules  for  The  development 
the  guidance  of  states  when  engaged  in  war-  "Ithe^wS b°°k 
fare  at  sea  ; 1  and  was  negotiated  by  the  powers  nation8- 
represented  at  the  great  Conference  of  Paris,  which  settled 
for  a  time  the  near-Eastern  question,  and  concluded  the 
Crimean  War,  by  the  Treaty  of  Paris  of  1856.  They  were 
seven  in  number  ;  but  five  out  of  the  seven  were  Great  Pow- 
ers.2 Further,  the  declaration  aimed  at  universality  by  mak- 
ing provision  for  the  adhesion  of  states  unrepresented  at  the 
conference.  The  great  majority  signed  immediately.  Others 
have  done  so  since,  till  at  the  present  time  only  five  signa- 
tures are  wanting.  Moreover,  the  powers  that  have  re- 
frained from  signing  have  acted,  when  belligerents,  as  if 
they  had  signed,  and  have  received,  when  neutrals,  the  same 
treatment  as  signatory  powers.  Thus  the  declaration  has 
behind  it  the  express  consent  of  almost  all  civilized  states 
and  the  tacit  consent  of  the  remainder.  Nothing  more  is 
wanted  to  make  it  authoritative.  It  is  an  international 
statute,  and  others  have  followed  it. 

The  Geneva  Convention  of  1864  for  the  amelioration  of 
the  condition  of  the  sick  and  wounded  in  warfare  on  land, 
though  signed  and  ratified  originally  by  only  ten  powers,  was 
rapidly  made  general  in  its  application  by  the  adhesion  of 
almost  all  the  rest.  It  was  revised  in  1906  by  a  conference 
assembled  at  Geneva,  and  in  its  second  and  improved  form  has 
received  the  ratification  of  many  states.  Others  will  doubt- 
i  See  §  243.  *  See  §  113. 


46  THE   HISTORY   OF   INTERNATIONAL  LAW 

less  follow  their  example  ;  and  it  must  not  be  forgotten  that 
meanwhile  all  the  outstanding  powers,  with  a  few  insignifi- 
cant exceptions,  are  bound  by  the  first  Convention.1  It  is 
therefore  true  to  say  that  the  Geneva  Convention,  in  one 
form  or  the  other,  is  an  international  statute. 

The  Declaration  of  St.  Petersburg  is  another,  which  was 
negotiated  in  1868  for  the  purpose  of  prohibiting  the  use  of 
explosive  bullets  in  war.  It  was  the  work  of  a  commission 
of  representatives  from  eighteen  states,  including  the  Great 
Powers  of  Europe.  Two  more  states  have  formally  acceded 
to  it  since  ;  and  nearly  all  the  others  have  bound  themselves 
indirectly  to  observe  it  by  their  acceptance  of  the  Hague 
Regulations  of  1899  and  1907  respecting  the  laws  and  cus- 
toms of  war  on  land.  The  twenty-third  article  of  these 
regulations  forbids  various  acts  "  in  addition  to  the  prohibi- 
tions provided  by  special  Conventions."  Of  these  Conven- 
tions the  Declaration  of  St.  Petersburg  is  one  ;  and  therefore 
the  powers  who  have  bound  themselves  to  obey  the  Hague 
regulations  have  ipso  facto  bound  themselves  to  submit  to 
the  restriction  laid  down  in  the  St.  Petersburg  Declaration.2 

The  Convention  that  provided  for  the  neutralization  of 
the  Suez  Canal 3  must  be  reckoned  among  pure  law-making 
treaties.  After  negotiations  extending  over  1887  and  1888, 
it  was  signed  in  October  of  the  latter  year  by  the  six  Great 
Powers  of  Europe,  and  Holland,  Spain,  and  Turkey,  that  is 
to  say,  by  all  the  states  most  closely  interested  in  the  matter 
with  which  it  dealt.  Other  states  have  accepted  it  tacitly, 
and  their  ships  have  conformed  to  its  provisions  when  pass- 
ing through  the  Canal.  We  must  therefore  hold  it  to  be 
an  international  statute.  It  is,  however,  premature  to  place 
the  Hay-Pauncefote  Treaty  of  1901  in  the  same  category, 
though  it  dealt  in  almost  exactly  the  same  way  with  a  simi- 

1  Whittuck,  International  Documents,  pp.  5,  82,  and  notes. 

2  Ibid.,  pp.  10, 11, 43, 135 ;  Holland,  Laws  of  War  on  Land,  pp.  41, 121-123, 
141. 

«  See  §  90. 


THE    HISTORY   OF   INTERNATIONAL   LAW  47 

lar  problem.  But  Great  Britain  and  the  United  States  are 
the  only  parties  to  it,  and  therefore  the  only  powers  legally 
bound  by  the  rules  laid  down  in  it  for  the  navigation  of  the 
Panama  Canal,  when  made.  They  claim  no  right  of  setting 
laws  to  the  rest  of  the  civilized  world.  Yet  inasmuch  as  the 
rules  embodied  in  the  treaty  are  just  in  themselves,  and  based 
in  almost  every  detail  on  those  which  have  gained  universal 
acceptance  in  the  parallel  case  of  the  Suez  Canal,  it  is  prob- 
able that  tacit  acceptance  of  them  on  the  part  of  other  states 
will  follow  the  junction  of  the  Atlantic  and  the  Pacific  by 
an  artificial  waterway.  Should  this  happen,  the  treaty  will 
become  a  pure  law-making  treaty,  though  it  is  not  one  at 
present. 

§32 

But  the  best  examples  of  international  statutes  are  to  be 
found  in  the  Conventions  negotiated  by  the  Peace  Conferences 
at  The  Hague  in  1899  and  1907.  They  differ  „ 

0  f  <*  The  rudiments  of 

from  all  others  in  that  they  are  the  work  of  an  international 
great  international  assemblies  which  came  to- 
gether for  the  express  purpose  of  endeavoring  to  make  laws 
for  the  whole  family  of  nations,  not  on  one  question,  but  on 
many.  In  fact,  they  were  rudimentary  legislatures;  and  it  is 
remarkable  that  the  first  of  them  stepped  into  that  position  al- 
most by  accident.  It  owed  its  origin  to  the  humanitarian  im- 
pulse of  the  Emperor  Nicholas  II  of  Russia,  who  was  deeply 
impressed  at  the  beginning  of  his  reign  by  the  havoc  of  war- 
fare and  the  economic  waste  of  incessant  preparation  for  it. 
He  therefore  proposed  a  great  international  conference  for 
the  purpose  of  coming  to  a  common  agreement  upon  "  the 
most  effectual  means  for  securing  to  all  peoples  the  benefits 
of  a  real  and  durable  peace,  and  above  all,  for  putting  an  end 
to  the  progressive  development  of  the  present  armaments."  l 
Peace  and  disarmament  were  the  objects  in  view.  But 
diplomatic  discussion  soon  showed  that  it  was  more  practi- 
cable to  regulate  war  than  to  abolish  it ;  and  the  programme 
1  Rescript  of  the  Tsar,  August  24, 1898. 


48  THE  HISTORY   OP  INTERNATIONAL  LAW 

of  the  conference,  issued  early  in  1899,  included  the  revision 
of  the  laws  of  war  on  land  and  the  regulation  of  Red-cross 
work  at  sea.1  When  the  delegates  of  the  powers  met  at  The 
Hague  in  May,  1899,  thejr  proceeded  to  negotiate  a  Con- 
vention for  the  Pacific  Settlement  of  International  Disputes, 
a  Convention  respecting  the  Laws  and  Customs  of  War  on 
Land,  and  a  Convention  for  the  Adaptation  to  Maritime  War- 
fare of  the  Principles  of  the  Geneva  Convention  of  1864. 
In  addition,  three  declarations  were  adopted.  The  first  pro- 
hibited, for  a  term  of  five  years,  the  launching  of  projectiles 
and  explosives  from  balloons  ;  the  second  forbade  the  use 
of  projectiles  destined  solely  for  the  purpose  of  diffusing 
asphyxiating  or  deleterious  gases  ;  and  the  third  required 
abstention  from  the  use  of  bullets  that  expand  or  flatten 
easily  in  the  human  body.  Nearly  all  the  twenty-six  powers 
represented  at  the  conference  signed  and  ratified  these 
instruments.2  The  exceptions  were  not  numerous  enough 
to  deprive  the  agreements  of  the  character  of  international 
statutes.  But  their  existence  set  up  an  important  difference 
between  the  new  and  rudimentary  legislative  assembly  of 
the  society  of  nations  and  the  developed  legislatures  of  the 
separate  states  which  compose  it.  The  individual  is  com- 
pelled by  his  government  to  obey  laws  made  in  due  form, 
even  if  he  disapproves  of  them  strongly.  But  the  state  can- 
not be  coerced  by  any  government  set  over  the  society  of 
states,  seeing  that  no  such  central  authority  exists.  If  it 
refuses  its  assent  to  a  law,  it  remains  unbound  thereby. 
We  must,  however,  add  that  tacit  consent  is  as  effective, 
though  not  as  easily  proved,  as  express  consent.  It  may  well 
happen  that  a  state  which  refused  to  sign  one  or  more  of  the 
Hague  Conventions,  may  nevertheless  act  on  them  so  per- 
sistently that  it  becomes  bound  by  custom,  though  not  by 
convention. 

1  Circular  of  Count  Mouravieff ,  January  11, 1899.    Lawrence,  International 
Problems  and  Hague  Conferences,  pp.  39-41. 

2  Whittuck,  International  Documents,  pp.  13-71. 


THE  HISTORY  OF   INTERNATIONAL  LAW  49 

Perhaps  the  most  epoch-making  performance  of  the  first 
Hague  Conference  is  one  to  which  little  attention  was 
directed  at  the  time.  Before  it  separated,  it  expressed  vari- 
ous wishes,  among  them  being  three,  each  of  which  desired 
that  an  important  matter  which  it  named  might  be  considered 
by  a  subsequent  conference.  It  thus  suggested  that  it 
should  not  stand  alone,  like  a  great  war  or  a  great  alliance, 
far-reaching  indeed  in  its  consequences,  but  in  itself  unique. 
Instead,  it  desired  to  be  reproduced  with  all  convenient 
speed.  The  words  of  its  Final  Act  spoke  only  of  a  second 
assembly,  but  the  thought  implied  a  series  of  assemblies. 
This  was  made  more  manifest  by  the  second  conference, 
which  met  in  1907,  and  consisted  of  delegations  from  forty- 
four  states,  who  may  be  said  to  have  represented  among 
them  the  whole  of  civilized  humanity.  Not  only  did  they 
recommend  the  summoning  of  a  third  conference  at  the  end 
of  another  period  of  seven  years,  but  they  also  suggested  a 
method  of  preparing  its  business  in  advance  and  drawing  up 
a  system  of  organization  and  procedure.1  It  is  impossible 
to  suppose  that  these  suggestions  would  have  been  made 
unless  their  authors  had  contemplated  a  series  of  Hague 
Conferences.  In  fact,  the  society  of  nations  is  developing  a 
new  organ.2  Unless  untoward  events  destroy  the  progress 
already  made,  in  less  than  a  generation  the  periodical  con- 
vocation of  an  international  legislature  will  be  as  much  a 
matter  of  course  as  the  sending  of  diplomatic  missions  or  the 
negotiation  of  important  treaties.  Already  a  palace  at  The 
Hague  is  being  prepared  for  the  assembly,  owing  to  the 
liberality  of  Mr.  Andrew  Carnegie. 

The  second  Hague  Conference  produced  no  less  than  thir- 
teen Conventions,  all  of  which  must  be  placed  in  the  class 
of  pure  law-making  treaties.  Their  voluminous  character 
precludes  further  notice  of  them  here.  They  will  be  discussed 
along  with  the  declarations  and  wishes  of  the  conference, 

1  Whittuck,  International  Documents,  pp.  14,  16,  89. 

2  Lawrence,  International  Problems  and  Hague  Conferences,  pp.  42,  43. 


50  THE   HISTORY   OF  INTERNATIONAL   LAW 

when  we  come  to  deal  with  the  various  subjects  to  which 
they  refer.  The  same  statement  must  be  made  with  regard  to 
the  Naval  Conference  of  1908-1909,  and  the  Declaration  of 
London  which  was  the  result  of  its  labors.  It  may  be  re- 
garded as  in  a  sense  an  appendix  to  the  output  of  the  second 
Hague  Conference,  making,  along  with  eight  of  the  Conven- 
tions included  therein,  a  code  which  covers  a  large  part  of 
the  rights  and  duties  connected  with  warfare  at  sea.  The 
circumstances  are  so  peculiar  that  they  need  elucidation. 
The  twelfth  of  the  Hague  Conventions  of  1907  was  concerned 
with  the  creation  of  an  International  Prize  Court,  to  act  as 
a  court  of  appeal  from  the  national  tribunals  of  the  bellig- 
erent powers,  before  whom  cases  of  capture  at  sea  are  taken 
in  the  first  instance.  It  is  obvious  that  such  a  court  must 
speak  with  vast  authority,  and  have  an  enormous  effect  in 
moulding  and  developing  the  law  of  maritime  prize.  But  it 
is  equally  obvious  that  no  power  whose  interests  were  largely 
bound  up  with  commerce  overseas  could  submit  itself  to  the 
judgment  of  the  court,  unless  it  knew  and  approved  before- 
hand the  main  principles  and  fundamental  rules  by  which 
the  decisions  would  be  guided.  Some  of  these  have  been 
settled  in  the  course  of  ages  by  general  consent.  The  second 
Hague  Conference  formulated  others.  But  it  failed  to  recon- 
cile opposing  views  with  regard  to  several  important  matters, 
notably  contraband  and  blockade.  Great  Britain  therefore 
proposed  that  the  chief  maritime  powers  should  send  repre- 
sentatives to  a  Naval  Conference  in  London,  for  the  purpose 
of  making  a  fresh  attempt  to  resolve  outstanding  difficulties 
connected  with  prize  law.1  The  conference  met  in  De- 
cember, 1908,  and  sat  till  February,  1909.  It  was  a  smaller 
and  better-organized  body  than  the  Hague  Conference,  and 
its  deliberations  were  crowned  with  success  to  a  most  en- 
couraging and  unexpected  degree.  On  one  only  of  the  ten 
important  subjects  laid  before  it  was  agreement  found  to  be 

1  Despatch  of  Sir  Edward  Grey,  February  27,  1908.     See  British  Parlia- 
mentary Papers,  Miscellaneous,  No.  4  (1909),  pp.  1,  2, 


THE   HISTORY   OF   INTERNATIONAL   LAW  51 

impossible.  On  another  a  confessedly  incomplete  agreement 
was  all  that  could  be  reached.  The  rest  were  settled  in  a 
way  that  has  met  with  the  general  approval  of  the  civilized 
world.  These  happy  results  were  embodied  in  a  code  of 
seventy-one  articles,  called  the  Declaration  of  London.1  It 
has  been  signed  by  the  ten  powers  represented  at  the  confer- 
ence, and  those  who  were  unrepresented  have  been  invited 
to  give  their  adhesion.  We  may  hope  that  before  long  a 
general  acceptance  and  ratification  will  render  the  Declara- 
tion the  undoubted  law  of  the  civilized  world.  Meanwhile, 
so  important  are  the  states  which  have  negotiated  it,  that 
they  will  be  able  to  call  into  existence  the  International 
Prize  Court  by  their  ratification  of  the  Hague  Convention 
on  the  subject. 

§33 

It  is  clear  that  great  changes  are  taking  place  before  our 
eyes ;  but  neither  their  exact  nature,  nor  the  full  extent  of 
their  operations,  is  easily  discernible.  Prob-  The  possibilities 
ably  he  is  wisest  who  dogmatizes  least.  Four  ofthefuture- 
things,  however,  seem  to  stand  out  plainly.  The  first  is  that 
the  society  of  nations  has  long  ago  overpassed  the  bounds 
of  Europe  or  of  Christendom,  and  become  coextensive  with 
civilization,  or  at  any  rate  such  civilization  as  is  capable 
of  assimilating  and  acting  on  those  ideas  of  interstate  re- 
lationships which  sprang  up  originally  among  the  Christian 
nations  of  Europe.  The  second  deals  with  consent  as  the 
foundation  of  the  rules  of  International  Law.2  Not  only 
has  it  taken  the  place  of  those  other  supports  to  which  we 
have  recently  referred,3  but  it  is  becoming  more  and  more  an 
express  consent,  diplomatically  given  to  carefully  formulated 

1  British  Parliamentary  Papers,  Miscellaneous,  No.  4  (1909),  pp.  73-92. 

2  Lawrence,  International  Problems  and  Hague  Conferences,  chapters  II 
and  III. 

«  See  §§  23,  24. 


52  THE   HISTOKY  OF  INTERNATIONAL  LAW 

propositions.  Thirdly,  we  see  that  the  society  of  nations 
has  thrown  up  an  organ  for  the  purpose  of  making  and  co- 
ordinating such  propositions,  and  securing  for  them  general, 
if  not  universal,  assent.  This  organ  is  the  periodical  conclave 
of  representatives  from  all  civilized  states  which  we  call  the 
Hague  Conference.  At  present  it  is  very  rudimentary,  and 
its  existence  does  not  preclude  that  of  other  and  smaller 
bodies,  assembled  for  purposes  like  in  kind  but  more  limited 
in  scope.  Its  continuous  life  seems  secure;  but  it  is  possible, 
though  not  probable,  that  it  may  not  survive  the  dangers 
of  its  early  environment.  In  some  respects  it  resembles  a 
legislature  in  that  it  makes  and  alters  what  may  with  reason- 
able accuracy  be  termed  laws.  In  other  respects  it  differs 
from  one  since  it  has  no  coercive  authority,  though  it  already 
possesses  in  its  bureau  and  permanent  council  the  germs  of 
an  executive  dependent  on  it.  This  question  of  authority 
brings  us  to  our  fourth  point,  which  we  will  put  in  the  form 
of  a  question,  since  it  has  been  raised,  rather  than  settled,  by 
recent  events. 

Do  the  developments  we  have  just  described  modify  in 
any  way  the  Grotian  doctrines  of  the  sovereignty  and  equality 
of  all  independent  states  ?  Much  depends  on  the  sense  in 
which  these  phrases  are  understood.  If  by  sovereignty  is 
meant  the  unfettered  exercise  of  the  corporate  will  on  each 
occasion  as  it  arises,  then  not  only  is  the  existence  of  Hague 
Conferences  an  encroachment  on  the  independence  of  states, 
but  any  kind  of  legal  restraint  is  incompatible  with  the  full 
exercise  of  international  individuality.  Nay,  more,  a  society 
of  nations  is  impossible  in  any  form;  for  society  implies 
restraint.  Surely  there  must  be  something  wrong  with 
premisses  from  which  such  conclusions  as  these  inevitably 
follow.  The  error  lies  in  supposing  that  a  person,  natural 
or  artificial,  parts  with  freedom  of  will  by  agreeing  before- 
hand to  obey  rules  that  it  recognizes  as  just  and  necessary, 
or  by  being  placed  under  an  authority  that  it  helps  to 
create  and  modify  from  time  to  time.  Nations  are  in  the 


THE   HISTORY   OF   INTERNATIONAL   LAW  53 

former  predicament  as  soon  as  they  become  subjects  of  Inter- 
national Law;  individuals  are  in  the  latter  when  they  are 
citizens  of  self-governing  states.  Such  a  natural  person  is 
not  deemed  to  be  other  than  a  freeman,  though  he  is  some- 
times in  a  minority  and  has  to  submit  to  laws  the  making  of 
which  he  strove  with  all  his  might  to  prevent.  And  cer- 
tainly such  an  artificial  person  should  not  be  regarded  as 
having  lost  any  part  of  its  sovereignty  when  it  binds  itself 
of  its  own  present  freewill  to  some  definite  course  of  action 
or  forbearance  in  the  future.  By  so  doing  it  parts  only  with 
a  barbaric  freedom  to  act  on  the  impulse  of  the  moment. 
Its  real  sovereignty,  that  is,  its  right  to  control  its  own  des- 
tinies, is  not  impaired  when  it  enters  into  relations  with  its 
fellows  which  imply  mutual  concessions  and  restraints.  It 
may  consent  to  them  beforehand  and  in  the  mass,  or  at  the 
time  and  separately;  but  in  both  cases  its  consent  is  given. 
Therefore  its  sovereignty  is  preserved  as  completely  under 
the  first  plan  as  under  the  second.  Unless  law  of  any  kind 
subverts  freedom,  International  Law  based  on  general  consent 
assuredly  does  not. 

With  regard  to  the  doctrine  of  equality,  the  issue  is  not  so 
clear.  Till  we  have  inquired  further  into  the  various  kinds 
of  states  and  the  position  assigned  to  them  by  International 
Law,  we  are  not  in  a  position  to  discuss  the  matter.  It  will 
be  dealt  with  when  we  come  to  consider  the  rights  and  duties 
connected  with  equality.1 

i  See  §§  113-116. 


CHAPTER   III 

THE  SUBJECTS   OF  INTERNATIONAL  LAW 

§34 

HAVING  briefly  traced  the  growth  of  a  society  of  nations, 
we  have  now  to  attempt  a  description  of  the  international 
There  are  grades  persons  who  belong  to  it  and  come  under  the 
among  the  subjects  ruleg  it  obeys>  All  authorities  agree  that  sover- 

of  International  f 

Law.  eign  states  are  subjects  of  International  Law. 

But  there  are  differences  of  opinion  as  to  whether  they  are 
the  only  subjects.  We  hold  that,  while  they  are  by  far  the 
most  important,  they  do  not  stand  alone.  Individuals  must 
possess  the  power  of  directing  their  own  actions  and  con- 
trolling their  own  lives  before  they  can  be  received  into  an 
ordinary  society  or  club.  In  the  same  way  a  state  must  be 
able  to  determine  its  own  destinies  before  it  can  be  accounted 
a  member  of  the  society  of  nations.  If  its  corporate  action 
is  settled  for  it  by  some  external  authority,  other  states  will 
be  obliged  to  deal  with  that  authority.  But  just  as  a  minor, 
who  has  partial,  but  not  full,  control  of  his  affairs  is  some- 
times permitted  to  join  a  society  in  a  lower  grade  of  member- 
ship, so  when  the  domestic  government  of  a  state  deals  with 
some  of  its  international  affairs,  while  an  external  authority 
answers  for  it  in  others,  it  is  impossible  to  regard  that  state 
as  outside  the  family  of  nations  entirely,  while  at  the  same 
time  it  is  evident  that  its  membership  is  not  complete.  We 
conclude,  therefore,  that  there  are  grades  and  degrees  among 
the  subjects  of  International  Law.  Besides  sovereign  states, 
part-sovereign  states  and  civilized  belligerent  communities  not 
being  states  are  also  subjects  of  International  Law.  With 
regard  to  corporations  and  individuals,  grave  doubts  exist. 

64 


THE  SUBJECTS   OF   INTERNATIONAL   LAW  55 

§35 

We  will  begin  with  sovereign  states.  In  order  to  under- 
stand their  nature  and  the  nature  of  their  subjection  to 
International  Law,  it  will  be  necessary  to  pass 

,  .  Sovereign  states. 

through  an  ascending  series  of  conceptions,  be- 
ginning with  the  rudimentary  one  of  a  state.1  A  state  may 
be  defined  as  a  political  community,  the  members  of  which  are 
bound  together  by  the  tie  of  common  subjection  to  some  central 
authority,  whose  commands  the  bulk  of  them  habitually  obey. 
This  central  authority  may  be  vested  in  an  individual  or  a 
body  of  individuals;  and,  though  it  may  be  patriarchal,  it 
must  be  more  than  parental;  for  a  family  as  such  is  not  a 
political  community,  and  therefore  not  a  state.  The  methods 
by  which  the  central  authority  is  created  are  outside  our 
present  subject.  Whether  a  political  community  is  governed 
by  hereditary  monarchs,  or  by  a  person  or  persons  elected  by 
some  of  its  members,  it  is  a  state  provided  that  the  obedience 
of  the  bulk  of  the  people  is  rendered  to  the  government. 
If  there  is  no  such  obedience,  there  is  anarchy;  and  in  pro- 
portion as  obedience  is  lacking,  the  community  runs  the  risk 
of  losing  its  statehood.  A  mere  administrative  division  of  a 
greater  whole,  such  as  a  French  department  or  an  English 
county,  would  not  be  called  a  state;  but  probably  we  should 
not  refuse  the  title  to  a  community  like  Canada  which  is  not 
entirely  free  from  political  subjection,  because  its  powers  of 
self-government  are  very  wide. 

We  have  seen  what  is  meant  by  a  state.  If  we  add  to  the 
marks  already  given  in  our  definition  of  it,  the  further  mark 
that  the  body  or  individual  who  receives  the  habitual  obedi- 
ence of  the  community  does  not  render  the  like  obedience  to 

1  In  a  state  the  tie  which  binds  the  members  together  is  political ;  that  is 
to  say,  their  sense  of  corporate  unity  comes  from  common  obedience  to  the 
same  government.  In  a  nation  the  tie  arises  from  community  of  blood,  or 
language,  or  religion,  or  historical  tradition,  or  some  or  all  of  these.  It  is 
not  of  itself  political,  but  it  almost  invariably  tends  to  become  political. 
Other  things  being  equal,  a  nation-state  is  stronger  and  happier  than  a  state 
which  is  not  a  nation. 


56  THE  SUBJECTS   OF   INTERNATIONAL  LAW 

any  earthly  superior,  we  arrive  at  the  conception  of  a  sover- 
eign or  independent  state,  which  possesses  not  only  internal 
sovereignty,  or  the  power  of  dealing  with  domestic  affairs, 
but  external  sovereignty  also,  or  the  power  of  dealing  with 
foreign  affairs.  The  commonwealths  which  compose  the 
American  Union  possess  all  the  features  we  have  enumer- 
ated as  the  distinguishing  marks  of  states.  They  are,  there- 
fore, rightly  so  called;  but  historical  and  political  reasons 
have  sometimes  caused  them  to  be  alluded  to  as  sovereign 
states.  Strictly  speaking,  this  is  a  mistake.  By  the  Con- 
stitution of  the  United  States  all  dealings  with  foreign 
powers  are  left  to  the  central  government.  The  executive 
and  legislature  of  any  and  every  state  in  the  Union  are 
devoid  of  the  slightest  power  to  act  in  these  matters,  and 
have  to  submit  to  what  is  done  by  the  authorities  at  Wash- 
ington. They  have  none  of  the  attributes  of  external  sover- 
eignty. They  cannot  make  war  or  peace,  nor  can  they  send 
agents  to  foreign  powers  or  receive  agents  from  them.  In 
other  words,  they  are  states,  but  they  are  not  sovereign 
states. 

But  it  is  not  necessary  in  order  that  a  society  may  be  a 
sovereign  state  that  its  ruler  or  rulers  should  never  submit 
to  the  will  of  others.  In  fact,  the  most  powerful  empires  in 
the  world  frequently  modify  their  course  of  action  in  defer- 
ence to  the  wishes  of  neighboring  states ;  and  no  one  dreams 
of  asserting  that  they  lose  their  independence  thereby.  Such 
deference  and  submission  is  a  condition  of  social  life.  It  is 
only  when  it  becomes  habitual  that  the  state  so  hampered 
ceases  to  be  fully  sovereign.  When  Russia,  for  instance,  in 
1878,  consented  to  take  back  the  Treaty  of  San  Stefano, 
which  she  had  made  separately  with  Turkey,  and  to  allow 
all  the  Great  Powers  of  Europe  a  voice  in  settling  the  ques- 
tions at  issue  in  the  East  by  another  treaty  negotiated  at 
Berlin,  she  did  nothing  to  impair  her  sovereignty.1  Nor 
did  the  United  States  lose  one  jot  of  its  independence  when, 
1  Holland,  European  Concert  in  the  Eastern  Question^  pp.  220-222, 


THE  SUBJECTS   OP   INTERNATIONAL   LAW  57 

in  1905,  President  Roosevelt  courteously  surrendered  to 
Nicholas  II  of  Russia  the  initiative  in  calling  together 
the  second  Hague  Conference.1  But  if  it  were  part  of  the 
public  law  of  the  civilized  world  that  every  treaty  made  by 
Russia  must  be  referred  to  an  European  Congress,  and  every 
international  act  of  the  President  of  the  United  States  must 
be  referred  to  the  pleasure  of  the  Emperor  of  Russia,  it 
would  be  impossible  to  regard  either  as  a  fully  independent 
power.  The  characteristics,  therefore,  of  a  sovereign  state 
are  two.  Its  government  must  receive  habitual  obedience 
from  the  bulk  of  the  people,  and  it  must  not  render  habitual 
obedience  to  any  earthly  superior. 

§36 

But  before  a  sovereign  state  can  become  a  subject  of  In- 
ternational Law,  it  must  possess  other  marks  in  addition  to 
those  we  have  just  enumerated.     A  wandering  some  amount  of 
tribe  without  a  fixed  territory  to  call  its  own  ^y^dlm^oT1-" 
might,  nevertheless,  obey  implicitly  a  chief  who  tance  necessary 

J          *  before  a  sovereign 

took  no  commands  from  other  rulers.  A  race  state  can  be 
of  savages  settled  on  the  land  might  render  a  subject  of^ter- 
similar  obedience.  Even  a  mere  fortuitous  con-  national  Law- 
course  of  men,  like  a  band  of  pirates,  might  be  temporarily 
under  the  sway  of  a  chief  with  unrestricted  power.  Yet  none 
of  these  communities  would  be  subject  to  International  Law, 
because  they  would  want  various  characteristics,  which, 
though  not  essential  to  sovereignty,  are  essential  to  member- 
ship in  the  family  of  nations.  In  the  first  place,  the  neces- 
sary degree  of  civilization  would  be  lacking.  It  is  impossible 
for  states  to  take  part  in  modern  international  society  when 
they  are  unable  to  realize  the  ideas  on  which  it  is  based.  No 
attempt  has  ever  been  made  to  define  the  exact  amount  of 
affinity  in  modes  of  life  and  standards  of  thought  which  must 
be  regarded  as  essential.  Each  case  is  settled  on  its  merits. 
The  area  within  which  the  law  of  nations  operates  is  sup- 

1  Lawrence,  International  Problems  and  Hague  Conferences,  p.  41, 


58  THE  SUBJECTS   OF  INTERNATIONAL  LAW 

posed  to  coincide  with  the  area  of  civilization.  To  be  received 
within  it  is  to  obtain  a  kind  of  international  testimonial  of 
good  conduct  and  respectability ;  and  when  a  state  hitherto 
accounted  barbarous  desires  admission,  the  powers  immedi- 
ately concerned  apply  their  own  tests. 

In  addition  to  the  attainment  of  a  certain,  or  rather  an  un- 
certain, amount  of  civilization,  a  state  must  have  possession 
of  a  fixed  territory  before  it  can  obtain  the  privilege  of  ad- 
mission into  the  family  of  nations.  The  rules  of  modern  In- 
ternational Law  are  so  permeated  from  end  to  end  with  the 
idea  of  territorial  sovereignty  that  they  would  be  entirely 
inapplicable  to  any  body  politic  that  was  not  permanently  set- 
tled upon  a  portion  of  the  earth's  surface  which  in  its  collec- 
tive capacity  it  owned.  Even  if  we  could  suppose  a  nomadic 
tribe  to  have  attained  the  requisite  degree  of  civilization,  its 
lack  of  territorial  organization  would  be  amply  sufficient  to 
exclude  it  from  the  pale  of  International  Law.  But  a  civil- 
ized and  independent  community,  settled  upon  a  tract  of 
land,  may  be  so  small  that  it  would  be  absurd  to  clothe  it 
with  the  rights  and  obligations  given  by  the  law  of  nations 
to  sovereign  states.  Such  a  minute  community  might  con- 
ceivably exist  unnoticed  for  a  little  time  in  some  distant  cor- 
ner of  the  world.  But  as  it  would  soon  be  absorbed  in  a 
larger  body,  or  reduced  to  a  position  of  dependence  on  a 
powerful  state,  we  need  not  concern  ourselves  with  the 
case. 

§37 

The  sovereign  states  which  are  subjects  of  International 
Law  are  regarded  as  units  in  their  dealings  with  each  other. 
The  kinds  of  fully  r^e  nature  °f  their  internal  arrangements  is 
sovereign  inter-  immaterial  from  the  point  of  view  of  their  fel- 

national  persons.       ,  , 

low-members  of  the  society  of  nations,  just  as  the 
division  of  functions  and  profits  between  the  partners  in  a 
commercial  firm  is  immaterial  from  the  point  of  view  of  those 
who  have  to  do  business  with  it.  About  unitary  states  there 
is  no  difficulty.  With  regard  to  composite  states,  as  long  as 


THE  SUBJECTS   OF   INTERNATIONAL  LAW  59 

in  any  given  case  there  is  some  authority  whose  word  concern- 
ing external  relations  binds  the  composite  whole,  Interna- 
tional Law  has  no  need  to  ask  whether  in  internal  affairs  it 
is  one  state  or  twenty.  To  students  of  political  philosophy 
and  constitutional  law  such  questions  are  immensely  im- 
portant. But  all  the  publicist  need  know  is  what  kinds  of 
union  make  their  members  into  one  state  so  far  as  external 
sovereignty  is  concerned,  and  what  kinds  preserve  the  sepa- 
rate international  existence  of  the  members  of  which  they 
are  composed,  and  intrust  them  with  a  share  in  the  con- 
trol of  their  external  relations.  In  the  former  class  we 
place  incorporate  unions,  real  unions,  and  federal  unions;  in 
the  latter,  personal  unions  and  confederations.  But  we  must 
remember  that  there  are  wide  differences  of  opinion  among 
writers  as  to  the  exact  meaning  of  some  of  these  terms,  and 
the  proper  description  to  be  applied  to  certain  composite 
states.1  In  fact,  the  classificatory  skill  of  jurists  toils  far  be- 
hind the  constructive  ingenuity  of  statesmen.  A  new  con- 
stitution is  established  because  it  seems  likely  to  work,  quite 
regardless  of  the  fact  that,  according  to  the  scheme  of  every 
text-book,  it  is  an  anomaly.  It  is  best  to  say  frankly  that 
the  classification  we  are  obliged  to  use,  cannot  lay  claim  to 
scientific  accuracy.  It  gives  us  descriptions  rather  than 
definitions,  types  rather  than  classes. 

We  will  commence  by  indicating  very  briefly  the  nature 
of  those  unions  which  create  a  new  international  person  in 
the  place  of  two  or  more  existing  previously.  There  are, 
first,  incorporate  unions.  One  of  these  takes  place  when  an 
organic  whole,  with  both  internal  and  external  affairs  under 
its  central  government,  is  formed  out  of  units  that  were 
separate  international  entities  in  the  not  very  remote  past. 
The  standing  example  is  the  United  Kingdom  of  Great 
Britain  and  Ireland,  made  up  by  the  incorporation  of  Eng- 
land and  Scotland  into  one  realm  in  1707  and  the  addition 

1  See,  for  instance,  Oppenheim,  International  Law,  vol.  I,  pp.  126-167, 
and  Westlake,  International  Z/aw,  part  I,  pp.  20-39. 


60  THE   SUBJECTS   OF   INTERNATIONAL  LAW 

of  Ireland  in  1800.  Next  come  real  unions.  These  are  junc- 
tions of  two  or  more  separate  states  under  one  monarch,  in 
such  a  way  that  each  remains  sovereign  as  far  as  its  in- 
ternal affairs  are  concerned,  while  their  external  affairs  are 
merged,  and  carried  on  as  a  whole  in  the  name  of  the  com- 
mon head.  The  state  is  thus  one  international  person,  though 
internally  it  is  composite.  This  is  the  case  with  Austria  and 
Hungary.  Each  limb  of  what  is  called  the  Dual  Monarchy 
possesses  its  separate  organization  for  legislative  and  ad- 
ministrative purposes ;  but  there  are  common  ministries  for 
foreign  affairs  and  war,  and  other  powers  carry  on  diplomatic 
intercourse  with  a  single  entity  known  to  them  as  the  Austro- 
Hungarian  Empire.  Sweden  and  Norway  were  brought  to- 
gether in  an  union  of  the  same  kind  in  1814,  and  remained 
so  joined  till  their  peaceful  severance  by  the  Treaty  of  Karl- 
stad in  1905.  In  federal  unions  there  is  a  central  body  de- 
nned by  the  constitution  and  charged  with  the  exclusive  con- 
trol of  the  international  relations  of  the  whole.  There  are 
also  some  member-states,  who  have  greater  or  less  power 
over  their  internal  affairs,  but  none  whatever  over  external 
matters.  The  federal  government  represents  the  whole  body 
politic  to  foreign  states,  with  whom  it  makes  war  and  peace, 
and  carries  on  diplomatic  intercourse.  It  is  an  international 
person  speaking  on  behalf  of  the  whole  union,  the  com- 
ponent parts  of  which  have  no  international  status.  The 
United  States  of  America  is  the  best  and  most  prominent 
instance  of  a  power  of  this  kind. 

Real  unions  must  be  distinguished  from  personal  unions, 
which,  strictly  speaking,  are  not  unions  at  all.  They  are 
said  to  arise  when  the  same  monarchical  person  happens  to 
be  head  of  the  state  in  two  or  more  political  communities. 
But  since  each  of  these  communities  retains  unimpaired  all 
the  powers  of  sovereignty,  and  neither  is  legally  affected  in 
any  way  by  the  other  as  regards  its  dealings  with  foreign 
states,  it  is  clear  that  the  so-called  union  has  no  existence. 
Each  of  the  members  who  are  said  to  compose  it  remains  a 


THE   SUBJECTS    OF   INTERNATIONAL   LAW  61 

separate  international  person,  as  did  England  and  Hanover 
from  1714  to  1837,  during  which  period  the  king  of  the 
former  country  was  also  elector  of  the  latter.  Considera- 
tions of  a  similar  kind  apply  to  federal  unions  and  con- 
federations. They  differ  in  that  the  states  united  in  a 
confederation  retain  for  themselves  the  right  of  dealing 
directly  with  foreign  powers,  though  in  some  external 
matters  the  central  authority  acts  for  the  whole  body; 
while,  as  we  have  already  seen,  the  distinguishing  mark 
of  a  federal  union  is  that  its  member-states  are  totally 
excluded  from  the  domain  of  foreign  affairs.  Each  confed- 
erated power  is  therefore  an  international  person,  like  each 
of  the  states  brought  together  in  a  so-called  personal  union. 
But,  unlike  such  states,  it  is  not  an  international  person  in 
the  fullest  sense,  and  the  statement  is  true  of  the  central 
body  also.  We  shall  discuss  their  position  when  we  deal 
with  limitations  of  sovereignty.1  At  present  our  concern 
is  with  those  subjects  of  International  Law  which  are  fully 
sovereign  states,  and  we  have  seen  reason  to  include  among 
them,  besides  independent  unitary  states  of  the  ordinary 
type,  incorporate  unions,  real  unions,  federal  unions,  and  the 
separate  states  that  are  erroneously  supposed  to  be  joined 
together  in  personal  unions.  The  question  whether  the  Great 
Powers  occupy  a  position  of  legal  preeminence  over  other 
sovereign  states  will  be  discussed  in  Part  II,  chapter  iv. 

§38 

We  have  now  to  consider  states  which  are  not  fully  sovereign. 
As  a  general  rule  the  domestic  government  in  a  political 
community  exercises  over  the  members  of  that  community 
Part-sovereign  all  the  powers  of  sovereignty.  But  in  some 
8tate8>  exceptional  cases  it  exercises  a  portion  of  them 

only,  the  remainder  being  vested  in  the  government  of  an- 
other country,  or,  in  confederations,  given  to  some  central 
authority.  If  the  division  of  powers  gives  internal  affairs 

1  See  §  40. 


62  THE  SUBJECTS   OF  INTERNATIONAL  LAW 

to  the  home  government,  while  some  outside  authority  has 
complete  control  of  external  relations,  International  Law 
will  recognize  only  the  power  that  deals  with  other  states 
in  the  name  of  the  community  in  question.  It  will  have  no 
more  to  do  with  the  domestic  rulers  than  it  has  with  the 
mayor  of  an  English  city  or  the  governor  of  an  American 
state.  But  if  a  division  is  made  of  external  affairs,  and 
some  of  them  are  assigned  to  the  home  government,  while 
others  are  dealt  with  by  an  authority  outside  it,  Interna- 
tional Law  must  recognize  both.  Yet  in  such  a  case  it  is 
clear  that  the  local  ruler  occupies  a  position  very  different 
from  that  of  the  chief  of  an  ordinary  independent  and  fully 
sovereign  state.  His  authority  is  restrained  and  condi- 
tioned by  that  of  the  external  power  which  shares  with  him 
the  direction  of  his  foreign  affairs.  The  independence  of 
his  state  is  not  full,  but  limited.  It  is  not  sovereign  in  the 
sense  that  Great  Britain  or  France  or  Italy  is  sovereign  ; 
and  yet  it  must  be  regarded  as  a  subject  of  International 
Law,  since  the  external  matters  controlled  by  the  domestic 
government  come  within  the  ambit  of  that  law.  It  pos- 
sesses an  international  personality,  though  of  an  inferior 
kind.  It  would  be  pedantry  to  exclude  it  from  the  family 
of  nations  because  it  is  not  wholly  sovereign  ;  just  as  it 
would  be  cruelty  to  exclude  from  the  social  family  a  half- 
brother,  or  half-sister,  because  a  family  is  generally  spoken  of 
as  a  married  pair  and  their  offspring.  Communities  of  the 
kind  we  are  considering  used  to  be  called  semi-sovereign 
states.  But  the  term  seems  to  imply  an  equal  division  of 
the  powers  of  sovereignty  between  the  local  and  the  foreign 
rulers.  We  will,  therefore,  use  instead,  the  phrase  part- 
sovereign  states,  since  it  more  correctly  describes  a  class  of 
communities  in  which  any  portion  of  the  powers  of  external 
sovereignty,  from  nearly  all  to  almost  none,  may  be  possessed 
by  the  home  government. 

Part-sovereign  states  may  be  defined  positively  as  political 
communities  in  which  the  domestic  rulers  possess  a  portion  only 


THE   SUBJECTS   OF   INTERNATIONAL   LAW  63 

of  the  powers  of  sovereignty,  the  remainder  being  exercised  by 
some  external  political  authority,  or  negatively  as  states  which 
do  not  possess  absolute  control  of  the  whole  of  their  policy.  But 
no  such  state  is  a  subject  of  International  Law  unless  the  di- 
vision of  powers  cuts  athwart  external  affairs,  assigning  some 
of  them  to  the  home  government,  and  some  to  the  outside 
authority.  When  a  political  community  is  obliged  to  submit 
itself  habitually  in  some  matters  of  external  importance,  to 
the  control  of  another  state,  it  is  for  international  purposes 
in  a  condition  of  part-sovereignty.  When  a  number  of 
political  communities  join  themselves  together  into  a  con- 
federation, each  of  the  states  thus  confederated,  and  also 
the  central  authority  of  the  confederation,  are  for  interna- 
tional purposes  in  a  condition  of  part-sovereignty.  We 
thus  obtain  two  divisions  of  part-sovereign  states,  and  it 
will  be  convenient  to  consider  each  separately.  But  before 
we  do  so  we  must  exclude  altogether  from  our  classification 
such  communities  as  the  native  states  of  India  and  the 
Indian  tribes  of  North  America.  The  former  are  sometimes 
spoken  of  as  independent  states  ;  but  in  reality  they  are  not 
even  part-sovereign  in  the  sense  given  to  that  term  by  In- 
ternational Law ;  for  they  may  not  make  war  or  peace,  or 
enter  into  negotiations  with  any  power  except  Great  Britain.1 
The  latter  have  been  adjudged  by  the  United  States  Su- 
preme Court  in  the  case  of  the  Cherokee  Nation  v.  the  State 
of  Georgia,  not  to  be  foreign  states,  but  "  domestic  depen- 
dent nations."2  They  cannot  deal  in  any  way  with  any 
power  other  than  the  United  States,  and  consequently  In- 
ternational Law  knows  nothing  of  them. 

§39 

We  must  now  consider  that  class  of  part-sovereign  states 
whose  domestic  rulers  find  themselves  limited  and  conditioned 

1  Westlake,  International  Law,  part  I,  pp.  41-43. 

2  Peters,  Reports  of  the  United  States  Supreme  Court,  vol.  V,  p.  1. 


G4  THE  SUBJECTS   OP   INTERNATIONAL   LAW 

in  dealing  with  external  affairs  by  the  rights  of  control  vested 
in  the  government  of  an  external  power.  Some  states  of  this 
kind  are  spoken  of  as  protectorates.  Of  others 
it  is  said  that  they  are  under  suzerainty. 
These  terms  are  very  unsatisfactory.  Instead  of  setting 
forth  any  common  feature  of  the  cases  that  are  classed 
under  them,  they  have  themselves  to  be  explained  by  the 
circumstances  of  each  particular  case.  It  is  generally  laid 
down  that  a  protectorate  involves  the  surrender  to  the  pro- 
tecting state  of  the  right  to  control  all  that  is  really  impor- 
tant in  the  foreign  affairs  of  the  protected  state,  while  purely 
domestic  matters  are  managed  by  the  home  government.1 
What  else  is  implied  by  suzerainty  it  would  be  difficult,  if 
not  impossible,  to  say.  But  if  we  turn  to  the  historical  in- 
stances, we  cau  find  protecting  states  that  controlled  all  the 
affairs,  both  domestic  and  foreign,  of  the  protected  state, 
and  suzerains  whose  power  did  not  extend  to  any  real  con- 
trol of  even  the  foreign  relations  of  the  vassal  state.  A  good 
example  of  the  first  is  found  in  the  protectorate  exercised  by 
Great  Britain  over  the  Ionian  Islands  from  1815  to  1863,  in 
which  latter  year  they  were  united  to  Greece.  During  the 
period  named  they  were  practically  governed  by  British 
commissioners,  and  could  not  accredit  diplomatic  representa- 
tives, or  even  consuls,  to  other  powers  ;  while,  to  complete 
the  mystification,  they  were  described  as  independent  in  the 
treaty  that  placed  them  under  British  protection.2  As  an 
example  of  the  attenuated  dimensions  which  the  powers  of  a 
suzerain  may  assume,  we  may  point  to  the  case  of  Bulgaria 
while  it  was  under  the  suzerainty  of  Turkey  from  1878  to 
1909.  During  all  this  time  the  wishes  of  the  Sultan  were 
constantly  set  at  naught  when  they  clashed  with  the  aspira- 
tions and  designs  of  the  Prince  of  Bulgaria  and  his  govern- 
ment. Not  only  had  the  nominal  suzerain  no  control  of 

iNys,  Droit  International,  vol.  I,  p.  364;  Rivier,  Droit  International, 
vol.  I,  pp.  83,  84. 

2  Holland,  European  Concert  in  the  Eastern  Question,  pp.  40-50. 


THE   SUBJECTS    OF    INTERNATIONAL   LAW  65 

internal  affairs,  but  Bulgaria  made  war  and  peace  without 
reference  to  his  authority,  incorporated  Eastern  Rumelia  in 
1885  in  defiance  of  him,  elected  a  new  prince  in  1887  with- 
out his  sanction,  and  finally  proclaimed  its  independence  in 
1908.1 

It  is  clear  from  these  cases,  which  could  easily.be  supported 
by  others  of  a  similar  kind,  that  the  terms  we  are  considering 
have  frequently  been  used  in  strained  and  non-natural  senses. 
This,  coupled  with  their  intrinsic  vagueness,  renders  them 
unfit  for  purposes  of  scientific  classification.  In  diplomacy 
one  great  object  is  to  disguise  unpalatable  facts  in  pleasant 
words.  This  alone,  useful  as  it  often  is  to  secure  assent  to 
arrangements  that  would  have  excited  keen  resentment  if 
set  forth  in  their  naked  harshness,  disqualifies  the  language 
of  many  international  instruments  for  use  when  precision  of 
statement  is  above  all  things  desirable.  In  order  to  group 
together  under  an  appropriate  heading  the  part-sovereign 
states  which  we  are  now  discussing,  we  want  a  phrase  that 
expresses  dependence,  but  does  not  attempt  to  set  forth  the 
extent  of  it  or  the  exact  nature  of  the  subjection  implied, 
except  that  it  is  concerned  with  external  affairs.  Might  we 
not  give  the  name  of  client  states  to  all  those  international 
persons  who  are  obliged  to  surrender  habitually  the  conduct 
of  their  external  affairs  in  any  degree,  great  or  small,  to  some 
state  authority  external  to  themselves  ?  A  client  implies  a 
patron  ;  and  the  patron  state  is,  of  course,  the  state  who  acts 
on  behalf  of  the  client  state  in  the  manner  defined  either  by 
long-continued  custom,  or  by  the  terms  of  some  formal  agree- 
ment, or  by  both.  But  the  extent  to  which  it  may  act  is 
left  by  the  terms  of  description  purposely  vague.  Its  power 
may  be  as  wide  as  was  that  of  Great  Britain  in  the  case  of  the 
Ionian  Islands,  where  the  only  shred  of  external  sovereignty 
left  to  the  local  government  was  that  it  might  receive  foreign 
consuls,2  or  it  may  be  as  narrow  as  was  that  of  Turkey 

1  Statesman's  Year  Book,  1909,  pp.  666,  667. 

2  Westlake,  International  Laio,  part  I,  p.  24. 


66  THE  SUBJECTS   OF   INTERNATIONAL   LAW 

with  regard  to  Roumania  and  Servia  from  1856  to  1878,  in 
which  latter  year  the  independence  of  both  was  recognized 
by  the  Treaty  of  Berlin.1 

One  advantage  of  the  proposed  nomenclature  would  be 
that  its  adoption  would  render  unnecessary  for  the  purposes 
of  International  Law  any  attempt  to  discriminate  between 
protectorates  and  states  under  suzerainty  ;  and  we  should,  in 
consequence,  be  spared  those  differences  of  definition  and 
classification  which  are  such  a  stumbling-block  to  students 
and  of  so  little  value  for  their  instruction.2  Another  is  that 
the  suggested  phrase  would  include  those  cases  in  which 
terms  of  superiority  and  inferiority  are  carefully  avoided, 
while  the  facts  are  eloquent  of  the  existence  of  dependence, 
sometimes  in  a  very  marked  form.  Cuba,  for  instance,  was 
made  into  an  independent  state  by  the  Treaty  of  Paris  of 
1898  ;  but  it  is,  in  fact,  subject  in  the  last  resort  to  the  con- 
trolling authority  of  the  United  States,  whose  arms  won  its 
so-called  independence,  and  whose  troops  occupied  the  island 
not  only  during  the  period  of  resettlement  from  1898  to 
1902,  but  also  from  1906  to  1909.  On  the  second  occasion 
they  were  present  in  pursuance  of  the  terms  of  the  Cuban 
Constitution  of  1902,  and  the  provisions  of  a  treaty  of  the 
following  year  whereby  a  right  of  intervention  was  expressly 
given  to  America  "  for  the  preservation  of  Cuban  indepen- 
dence, the  maintenance  of  a  government  adequate  for  the  pro- 
tection of  life,  property  and  individual  liberty,"  and  for  other 
purposes.  One  of  tr  3  occasions  contemplated  in  the  treaty 
arose  in  1906,  when  a  revolution  broke  out  and  President 
Palma  resigned  his  onice.  A  provisional  governor  was  ap- 
pointed by  the  United  States,  and  his  authority  restored 
order  and  reformed  abuses.  The  way  was  thus  prepared 
for  an  honest  election,  at  which  General  Gomez  secured  the 

1  Holland,  European  Concert  in  the  Eastern  Question,  pp.  251-253,  297- 
303. 

2  Westlake,  International  Law,  part  I,  pp.  22-27  ;  Oppenheim,  Interna- 
tional Law,  vol.  I,  pp.  133-140. 


THE   SUBJECTS    OF    INTERNATIONAL   LAW  67 

presidential  chair.  As  soon  as  his  administration  was  firmly 
established,  the  American  governor  and  troops  were  with- 
drawn, and  the  island  was  left  to  its  own  domestic  rulers.1 
The  United  States  acted  in  good  faith  throughout ;  but  only 
the  future  can  decide  whether  local  ability  and  patriotism 
can  maintain  a  stable  government.  If  there  should  be  fail- 
ure in  this  respect,  the  American  Union  must  be  the  succes- 
sor of  the  moribund  state.2  In  addition  to  the  right  of 
intervention  provided  for  in  the  Cuban  Constitution,  the 
United  States  has  secured  by  treaty  the  possession  of  two 
coaling  stations  on  the  coast,  and  has  limited  the  treaty- 
making  powers  of  its  government  in  dealing  with  foreign 
states.  No  stipulation  is  to  be  entered  into  to  the  detriment 
of  Cuban  independence  —  a  provision  evidently  meant  to 
prevent  the  growth  of  any  claims  inconsistent  with  those 
of  America. 

In  view  of  the  facts  just  enumerated,  we  can  only  conclude 
that  the  relations  between  the  Cuban  Republic  and  the 
United  States  differ  in  a  marked  degree  from  those  that  sub- 
sist between  two  independent  states  of  the  ordinary  type. 
Such  terms  as  suzerainty  and  protection  have  been  so  care- 
fully avoided  in  all  official  documents  that  to  use  them  here 
might  be  regarded  as  indiscreet.  But  there  can  be  no  rea- 
sonable objection  to  a  description  of  Cuba  as  a  client  state. 
The  same  phrase  will  apply  to  Korea  in  its  relation  to  Japan 
from  1904  to  1910.  By  the  protocol  of  February  23,  1904, 
the  Japanese  government  guaranteed  the  independence  of  the 
Korean  Empire  ;  but  by  subsequent  agreements,  financial  and 
diplomatic  advisers  were  to  manage  the  corresponding  de- 
partments of  the  Korean  administration,  and  the  control  of 
the  ports,  telegraphs,  and  telephones  of  Korea  was  handed 
over  to  the  Japanese  authorities.  A  further  step  was  taken 

1  American  Journal  of  International  Law,  vol.  I,  pp.  149,  150,  and  vol. 
HI,  pp.  431,  432. 

2  For  a  grave  warning  from  President  Roosevelt,  see  Foreign  Relations  oj 
the  United  States,  1906,  part  I,  p.  xlv. 


68  THE  SUBJECTS   OF  INTERNATIONAL  LAW 

on  November  17, 1905,  when  it  was  settled  that  the  Japanese 
foreign  office  should  direct  the  external  affairs  of  Korea.1 
Yet  as  diplomatic  representatives  from  foreign  powers  were 
still  accredited  to  the  Court  of  Seoul,  the  country  continued 
to  be  regarded  as  an  international  person  though  there  would 
have  been  no  abuse  of  terms  in  describing  it  as  a  client  state. 
As  the  phrase  leaves  indefinite  the  amount  and  degree  of 
control,  it  applies  equally  well  to  all  the  dependent  states 
known  to  International  Law.2  Such  states  can  hardly  con- 
tinue for  long  in  their  anomalous  position.  They  will  grow 
either  stronger  or  weaker.  In  the  first  case  they  will  strive 
for  complete  independence.  In  the  second,  they  will  be 
absorbed  by  the  patron  state,  as  was  Korea  by  Japan,  under 
the  provisions  of  the  treaty  of  August  29, 1910. 8 

§40 

Part-sovereign  states  of  the  second  class  now  demand  our 

attention.     We  have  already  called  them  confederations,  to 

distinguish  them  from  the  more  closely  united 

Confederations.  . 

group  to  which  we  have  given  the  name  ot  federal 
unions.  Composite  states  are  generally  divided  into  two 
kinds.  The  first,  called  in  German  a  Bundesstaat,  comprises 
unions  in  which  the  central  authority  alone  can  deal  with 
foreign  powers  and  settle  external  affairs,  the  various  mem- 
bers having  control  over  their  internal  affairs  only.  In  the 
second,  called  a  Staatenbund,  are  included  all  groups  where 
the  states  that  have  agreed  to  unite  have  retained  the  power 
of  dealing  directly  with  other  states  in  some  matters, 
the  remaining  external  affairs  being  reserved  by  the  federal 
bond  to  the  central  authority.4  The  best  examples  of  the 
former  now  in  existence  are  the  United  States  of  America 
and  Switzerland.  No  good  example  of  the  latter  remains, 

Lawrence,  War  and  Neutrality  in  the  Far  East,  2ded.,  pp.  282-285; 
•Supplement  to  American  Journal  of  International  Law,  vol.  I,  pp.  217-226. 

*  See  Oppenheim,  International  Law,  vol.  I,  pp.  154-157,  and  Rivier, 
Droit  International,  vol.  I,  pp.  85-93. 

3  American  Journal  of  International  Law,  vol.  IV,  pp.  923-925. 

4  Heffter,  Das  Europdische  Volkerrecht,  §§  20,  21. 


THE   SUBJECTS    OP   INTERNATIONAL   LAW  69 

but  the  German  Confederation,  which  lasted  from  1815  to 
1866,  is  the  great  historical  instance.  Each  member  had  the 
right  of  entering  into  relations  with  foreign  states,  provided 
that  it  did  nothing  against  the  security  of  any  other  member 
or  of  the  Confederation  itself.  The  central  authority  was 
vested  in  a  Diet  which  sat  at  Frankfort,  and  was  composed 
of  the  ministers  of  the  separate  states.  It  had  the  power  of 
making  treaties,  sending  and  receiving  ambassadors,  and 
declaring  war  against  foreign  powers  in  case  the  territory  of 
the  Confederation  should  be  threatened  by  them.  On  the 
other  hand,  the  separate  states  sent  representatives  both 
to  one  another  and  to  foreign  states.1  The  full  powers  of 
sovereignty  over  the  territories  included  in  the  Confedera- 
tion were  thus  divided  between  the  Diet  and  the  home  gov- 
ernment of  that  territory. 

From  the  point  of  view  of  International  Law,  a  Bundesstaat 
does  not  differ  from  an  ordinary  sovereign  state.  It  forms 
but  one  state  in  relation  to  foreign  powers.  Internally  it 
may  consist  of  many  states  ;  but  as  they  have  no  right  of 
sending  and  receiving  diplomatic  missions,  or  making  peace 
or  war,  foreign  powers  have  as  little  to  do  with  them  as  they 
have  with  the  administrative  divisions  of  an  ordinary  state. 
The  case  of  a  Staatenbund  is  different.  It  is  a  bundle  of 
separate  states,  each  of  which  retains  some  of  the  rights  of 
external  sovereignty  while  it  is  deprived  of  the  remainder. 
Accordingly  the  states  that  compose  it  must  be  placed  by 
International  Law  among  those  part-sovereign  communities 
which  we  regard  as  the  second  class  among  its  subjects. 
They  are  something  more  than  administrative  divisions  of 
a  larger  whole.  They  are  something  less  than  sovereign 
states.  But  they  have  a  real,  though  limited,  international 
personality;  and  what  is  true  in  this  respect  of  them  is  true 
also  of  the  central  government. 

It  is  sometimes  exceedingly  difficult  to  refer  a  given  com- 
posite state  to  either  of  the  types  depicted  above.  The  Swiss 
1  Wheaton,  International  Law,  §§  47-51. 


70  THE  SUBJECTS  OP  INTERNATIONAL  LAW 

Confederation,  for  instance,  was  at  its  inception  a  union  of 
the  looser  kind.  Since  the  last  revision  of  its  constitution  in 
1874  it  can  be  regarded  as  a  federal  union  or  Bundesstaat. 
But  at  certain  periods  of  its  history  it  could  hardly  be  called 
the  one  or  the  other  with  any  regard  to  strict  accuracy.  At 
the  present  time  the  German  Empire,  which  was  constituted 
in  1871  in  consequence  of  successful  war  with  France,  is  in 
much  the  same  predicament.  The  central  authority  makes 
war  and  peace,  sends  and  receives  ambassadors,  and  negoti- 
ates-treaties  for  political  and  commercial  objects.  But  the 
governments  of  the  states  that  form  the  Empire  have  the 
right  of  accrediting  diplomatic  representatives  to  foreign 
powers  and  receiving  representatives  from  them  to  deal  with 
matters  not  reserved  to  the  Imperial  Government.  Probably 
the  diplomatists  in  question  are  not  overwhelmed  with  work  ; 
for  it  is  difficult  to  discover  in  the  Constitution  of  the  Em- 
pire any  important  matters  left  for  them  to  deal  with.  But 
since  a  right  of  separate  diplomatic  intercourse  with  foreign 
powers  is  vested  in  the  federated  states,  we  are  unable  to  say 
that  the  Empire  is  a  true  Bundesstaat,  however  insignificant 
the  deflections  from  that  type  may  be.  At  the  same  time, 
it  is  equally  impossible  to  call  it  a  Staatenbund,  in  view  of 
the  fact  that  for  all  practical  purposes  the  central  authority 
alone  transacts  the  external  business  of  the  union.  History 
shows  that  composite  states  of  the  lower  type  of  union  are 
politically  in  a  condition  of  unstable  equilibrium.  None  of 
the  true  examples  of  that  type  have  survived  to  the  present 
day.  Their  members  either  separated  and  formed  fresh 
combinations,  as  did  those  of  the  German  Bund,  or  strength- 
ened the  federal  pact  till  their  union  became  a  Bundesstaat, 
as  did  those  of  the  Swiss  Confederation.  The  present  ten- 
dency in  Germany  seems  to  set  in  the  latter  direction. 

§41 

We  have  now  to  consider  the  relation  in  which  civilized 
belligerent  communities  not  being  states  stand  to  International 


THE  SUBJECTS   OP   INTERNATIONAL  LAW  71 

Law.  We  have  reckoned  them  among  its  subjects,  and  it 
remains  for  us  to  justify  our  classification.1  These  communi- 
ties have  not  received  recognition  as  sovereign 

&        Civilized  bellige- 

states  ;  but  their  governments  possess  the  es-  rent  communities 
sential  attributes  of  sovereignty,  and  they  desire 
admission  into  the  family  of  nations.  Why,  then,  are  they 
excluded  from  full  membership?  Because  the  fact  of  their 
sovereignty  may  be  a  temporary  phenomenon.  They  are  en- 
deavoring by  war  to  cut  themselves  adrift  from  the  state  of 
which  they  form  a  part,  and  to  set  up  a  separate  national  exist- 
ence of  their  own ;  and  while  serious  efforts  are  still  being 
made  for  their  subjection,  the  government  they  have  created 
may  at  any  moment  be  overturned,  and  they  may  relapse  into 
their  former  condition  of  component  portions  of  a  larger  politi- 
cal whole.  Accordingly  they  are  not  recognized  as  indepen- 
dent states  while  the  struggle  is  proceeding  with  any  semblance 
of  vigor  on  the  part  of  the  mother-country.  But  meanwhile 
they  are  levying  armies,  equipping  cruisers  if  the  contest  is 
maritime,  and  carrying  on  war  in  a  regular  and  civilized 
fashion;  and  those  states  who  are  brought  into  contact  with 
their  operations  must  decide  whether  to  regard  them  as  law- 
ful or  unauthorized.  In  a  case  such  as  we  have  supposed, 
there  can  be  no  doubt  of  the  decision.  War  exists  as  a  fact, 
and  interested  states  must  open  their  eyes  to  it.  This  they 
do  by  according  to  the  incipient  political  community  what  is 
known  as  recognition  of  belligerency.  The  effect  of  theii 
action  is  to  endow  the  community  with  all  the  rights  and  all 
the  obligations  of  an  independent  state  so  far  as  the  war  is 
concerned,  but  no  further.  Its  armies  are  lawful  belligerents, 
not  banditti ;  its  ships  of  war  are  lawful  cruisers,  not  pirates  > 
the  supplies  it  takes  from  invaded  territory  are  requisitions, 
not  robbery  ;  and  at  sea  its  captures  made  in  accordance  with 
maritime  law  are  good  prize,  and  its  blockades  must  be  re- 
spected by  neutrals.  But  on  the  other  hand,  its  government 
cannot  negotiate  treaties,  nor  may  it  accredit  diplomatic 
ministers.  The  intercourse  it  carries  on  with  other  powers 

1  See  §  34. 


72  THE  SUBJECTS   OF   INTERNATIONAL   LAW 

must  be  informal  and  unofficial.  It  has  no  rights,  no  im- 
munities, no  claims,  beyond  those  immediately  connected  with 
its  war.  It  is  thus  a  subject  of  International  Law  only  in  a 
limited  and  imperfect  manner.  The  subjection  is  very  real  as 
far  as  it  goes,  though  it  covers  but  one  portion  of  the  activity 
of  a  state  and  does  not  extend  to  the  normal  relations  of 
peaceful  intercourse.  Should  the  belligerent  community 
succeed  in  defeating  all  the  attempts  of  the  mother-country 
to  subdue  it,  sooner  or  later  existing  states  will  accord  to  it 
recognition  of  independence,  and  it  will  then  stand  on  the 
same  footing  as  they  do,  and  become  a  subject  of  Inter- 
national Law  in  all  things.  We  shall  see  later  on  in  this 
chapter  what  are  the  conditions  of  recognition  of  indepen- 
dence, and  when  we  come  to  deal  with  the  subject  of  war 
we  shall  discuss  under  what  conditions  recognition  of  bellig- 
erency may  be  given  without  affording  to  the  parent  state 
just  ground  of  offence.1 

§42 

Having  gone  through  the  list  of  the  undoubted  subjects 
of  International  Law,  we  must  proceed  to  deal  with  the 
The  doubtful  cases  doubtf  ul  cases  of  individuals  and  corporations. 

of  individuals  and     ,,,..    ,  -.  ,.  ~ 

corporations.  With  regard  to  them  there  are  great  differences 
of  opinion.  It  is  argued  on  the  one  hand  that  by  the  very 
nature  of  things  International  Law  is  a  law  between  states 
and  states  only.2  When  answer  is  made  that  it  allows 
aggrieved  governments  to  deal  severely  with  foreign  pirates 
or  neutral  blockade-runners,3  and  grants  security  to  subjects 
of  one  country  visiting  another  about  their  lawful  business, 
we  are  told  that  these  powers  and  rights  are  not  conferred 
directly  by  International  Law,  but  are  taken  and  given  in 
conformity  witli  it.  The  municipal  laws  of  civilized  states 

1  See  §§  46,  141. 

2  Oppenheim,  International  Law,  vol.  I,  pp.  18,  19 ;  Hall,  International 
.Law,  5th  ed.,  p.  17. 

«  Westlake,  Chapters  on  the  Principles  of  International  Law,  pp.  1,  2. 


THE  SUBJECTS  Otf  INTERNATIONAL  LAW  73 

grant  various  rights  to  foreign  individuals  who  come  within 
the  territory  in  which  they  prevail.  They  do  so,  however, 
because  International  Law  demands  of  each  member  of  the 
family  of  nations  that  it  shall  protect  the  life  and  property 
of  all  harmless  folk  within  its  borders.  Again,  foreign  in- 
dividuals sometimes  suffer  under  the  rules  of  maritime  cap- 
ture and  the  laws  against  piracy.  But  this  happens  because 
International  Law  requires  that  the  states  to  which  they 
belong  shall  not  protect  them  from  the  consequences  of  such 
serious  misdeeds  when  imposed  by  other  states  in  accordance 
with  accepted  practice.  Thus  the  argument  runs,  and  it 
is  difficult  to  see  where  the  advantage  lies.  Probably  it  is 
best  to  say  with  Oppenheim 1  that  persons,  like  territory,  are 
objects  of  International  Law,  and  reserve  the  term  subjects 
for  those  artificial  persons  who  are  either  sovereign  states,  or 
communities  closely  akin  to  them  through  the  possession  of 
some  of  the  distinguishing  marks  of  statehood. 

What  we  have  said  of  individuals  might  apply  equally 
well  to  corporations  as  owners  of  property,  were  it  not  that 
some  of  them  are  endowed  with  special  privileges  and  hold  a 
peculiar  position.  The  ordinary  corporation  can  be  relegated 
to  the  same  position  as  the  ordinary  individual.  But  it  is 
difficult  to  fix  the  international  status  of  those  great  chartered 
companies  which  have  been  called  into  existence  by  some  of 
the  colonizing  powers,  especially  Great  Britain  and  Germany, 
to  open  up  enormous  territories  when  first  brought  within 
the  sphere  of  their  influence.  We  refer  to  such  privileged 
corporations  as  the  German  East  Africa  Company,  the  British 
North  Borneo  Company,  and  the  British  South  Africa  Com- 
pany. The  last  is  probably  the  strongest  and  most  impor- 
tant of  them  all.  It  may  be  considered  typical  of  its  class  ; 
and  an  examination  of  the  powers  conferred  upon  it  will 
throw  light  on  the  problem  before  us. 

By  Order  in  Council  dated  January  18,  1889,  Queen 
Victoria  granted  to  a  group  of  noblemen  and  gentlemen  a 
1  International  Law,  vol.  I,  p.  344. 


74  THE  SUBJECTS  OP   INTERNATIONAL  LAW 

royal  charter  of  incorporation  as  a  British  company,  formed 
for  the  purpose  of  carrying  into  effect  concessions  made  by 
the  chiefs  and  tribes  of  a  region  which  stretches,  as  extended 
by  further  grant  from  her  Majesty  in  1891,  from  the  Trans- 
vaal territory  and  the  22d  parallel  of  south  latitude  to  the 
southern  limits  of  the  Congo  Free  State  and  German  East 
Africa,  and  is  bounded  on  the  east  and  west  by  Portuguese 
and  German  spheres  of  influence  and  the  Nyassaland  Pro- 
tectorate of  Great  Britain.  Within  this  enormous  territory 
the  company  possesses,  under  the  original  charter  and  subse- 
quent Orders  in  Council,  the  liberty  to  acquire  by  concession 
from  the  natives  "  any  rights,  interests,  authorities,  jurisdic- 
tions, and  powers  of  any  kind  or  nature  whatever,  including 
powers  necessary  for  the  purposes  of  government."  This 
right  is  to  be  exercised  subject  to  the  approval  of  the  Secre- 
tary of  State  for  the  Colonies,  whose  consent  has  to  be  gained 
to  the  legislative  ordinances  the  company  may  promulgate, 
and  whose  arbitration  may  be  offered,  and  must  be  accepted 
if  offered,  in  case  any  differences  arise  with  any  native  chief  or 
tribe  within  the  territory.  The  company  may  use  a  distinc- 
tive flag  indicating  its  British  character.  It  is  bound  not  to 
set  up  any  monopoly  of  trade,  nor  to  allow  the  sale  of  intoxi- 
cants to  the  natives,  nor  to  interfere  with  their  religious  rites 
except  for  purposes  of  humanity.  It  must  maintain  courts 
for  the  administration  of  justice,  and  pay  due  regard  therein 
to  native  laws  and  tribal  customs.  The  discouragement  and 
gradual  abolition  of  the  slave  trade  and  domestic  servitude  are 
made  obligatory  upon  it.  The  suggestions  of  the  Colonial 
Secretary  are  to  be  adopted  if  he  dissents  from  "  any  of  the 
dealings  of  the  company  with  any  foreign  power,"  and  proper 
attention  is  to  be  paid  to  the  requirements  and  requests  of 
the  Resident  Commissioner  appointed  by  the  Secretary  of 
State.  There  is  also  a  Secretary  for  Native  Affairs,  whose 
business  it  is  to  safeguard  the  rights  of  the  native  population. 
Further,  the  company  is  bound  to  perform,  under  the  direc- 
tion of  the  Colonial  Secretary,  all  obligations  contracted 


THE   SUBJECTS   OF   INTERNATIONAL   LAW  75 

by  the  Imperial  Government  with  foreign  powers  in  so  far 
as  they  relate  to  its  territory  and  its  activities.  And  lastly, 
the  Crown  reserves  a  right  to  revoke  its  charter  at  any 
time,  if  it  exercises  its  powers  improperly,  and  to  alter  or 
put  an  end  to  so  much  of  the  charter  as  relates  to  adminis- 
trative and  public  matters  after  twenty-five  years  from  the 
first  grant,  and  at  the  end  of  every  succeeding  period  of  ten 
years.1 

It  is  easy  to  see  how  the  natives  must  regard  a  body  of  men 
armed  with  such  authority  as  that  granted  to  the  British 
South  Africa  Company,  and  possessed  of  skill,  energy,  scien- 
tific machinery,  and  weapons  of  precision.  To  them  the  com- 
pany must  be  all-powerful.  It  legislates,  it  administers,  it 
punishes,  it  negotiates,  it  makes  war,  and  it  concludes  peace. 
As  regards  the  native  tribes,  it  exercises  all  the  powers  of 
sovereignty.  Yet  all  this  vast  fabric  of  supremacy  rests  upon 
the  foundation  of  a  royal  grant  which  is  subject  to  be  re- 
voked at  any  time  if  the  advisers  of  the  British  Crown  are 
dissatisfied  with  the  conduct  of  the  company,  and  is  exercised 
from  day  to  day  at  the  discretion  of  a  royal  officer  who  has 
power  to  disallow  the  company's  acts  and  insist  upon  obe- 
dience to  his  requirements.  And  behind  all  stands  the  re- 
served supremacy  of  the  Imperial  Parliament,  which  could  by 
legislation  make  any  alteration  it  pleased  in  the  constitution 
and  position  of  the  company,  or  even  abolish  it  altogether. 
Clearly,  then,  it  is  no  independent  authority  in  the  eye  of 
British  law,  but  a  subordinate  body  controlled  by  the  appro- 
priate departments  of  the  supreme  government.  Like  Janus 
of  old,  it  has  two  faces.  On  that  which  looks  towards  the 
native  tribes  all  the  lineaments  and  attributes  of  sovereignty 
are  majestically  outlined.  On  that  which  is  turned  towards 
the  United  Kingdom  is  written  subordination  and  submission. 
We  may  extend  the  simile  and  make  it  apply  to  all  the 
other  chartered  companies  of  which  we  spoke.  They  are 
sovereign  in  relation  to  the  barbarous  or  semi-barbarous 

1  London  Gazette,  December  20,  1889 ;  Statesman's  Year  Book,  1909. 


76  THE  SUBJECTS  OP  INTERNATIONAL  LAW 

inhabitants  of  the  districts  in  which  they  bear  sway.  They 
are  subject  as  regards  the  governments  of  their  own  states. 
History  supplements  abstract  reasoning,  and  by  showing 
how -England's  East  India  Company  ruled  a  mighty  empire, 
and  yet  was  subject  to  British  legislation  and  was  at  last 
swept  away  altogether  by  the  action  of  Queen  and  Par- 
liament, confirms  in  a  striking  manner  this  view  of  the 
position  of  chartered  companies.  Inasmuch  as  they  exercise, 
over  vast  territories  and  towards  numerous  populations,  state 
authority  delegated  by  the  international  person  who  created 
and  could  at  any  moment  destroy  them,  they  may  be  re- 
garded as  international  persons  themselves,  though  of  a  very 
imperfect  and  subordinate  kind. 

§43 

The  results  we  have  reached  may  be  summarized  as  follows. 

The  subjects  of  International  Law  are  sovereign  states 
Anomalous  cases-  and  those  other  political  bodies  which,  though 
colonial  protector-  lacking  many  of  the  attributes  of  sovereign 

atos,  neutralized 

states,  Egypt,  the  states,  possess  some  to  such  an  extent  as  to 
make  them  real,  but  imperfect,  international 
persons.  These  are  part-sovereign  states,  under  which 
term  we  include  client  states,  and  also  confederations,  to- 
gether with  the  member-states  that  compose  them  ;  civil, 
ized  belligerent  communities  whose  belligerency,  but  not 
whose  independence,  has  been  recognized ;  and  chartered 
companies  to  whom  have  been  delegated  vast  governmental 
powers.  Individuals  we  have  seen  reason  to  regard  rather 
as  objects  than  as  subjects  of  a  law  that  exists  between 
states,  though  we  recognize  fully  that  private  persons  may 
and  do,  especially  while  war  is  going  on,  perform  on  their 
own  responsibility  acts  that  bring  them  into  direct  contact 
with  the  rules  of  International  Law.  But  before  we  pass 
on  to  deal  with  admission  into  the  society  of  nations,  we  will 
describe  briefly  a  few  anomalous  cases  connected  with  inter- 
national personality. 


THE   SUBJECTS   OF   INTERNATIONAL   LAW  77 

The  first  is  that  of  colonial  protectorates,  as  they  are  some- 
times called.  These  are  comparatively  modern  expedients, 
and  differ  from  the  old-fashioned  protectorates  we  have  al- 
ready discussed  in  that,  instead  of  being  a  relation  between 
two  states,  both  known  to  International  Law,  they  may  bet- 
ter be  described  as  an  attitude  on  the  part  of  a  civilized  power 
towards  a  district  and  population  too  uncivilized  to  be  re- 
garded as  a  state  of  International  Law.  Protectorates,  prop- 
erly so  called,  involve  both  a  protecting  and  a  protected 
state,  as,  for  example,  the  little  mountain  republic  of  San 
Marino,  an  enclave  of  Itaty,  which  is  now  under  the  "  ex- 
clusive protective  friendship  "  of  the  latter  power.1  But  in 
colonial  protectorates  there  is,  as  Westlake  pithily  says,  "  no 
state  to  be  protected."2  The  east  side  of  Africa,  from  Dela- 
goa  Bay  to  the  Egyptian  frontier,  is  studded  with  British, 
German,  Portuguese,  Italian,  and  French  protectorates,  which 
have  in  common  two  features.  In  the  first  place,  they  do 
not  cover  the  territory  with  a  civilized  administration,  but 
direct  and  control  in  greater  or  less  degree  the  native  chiefs 
and  headmen ;  and  in  the  second  place,  they  allow  no  other 
civilized  state  to  exercise  authority  within  the  protected  dis- 
trict, or  enter  into  anything  resembling  international  rela- 
tions with  its  native  rulers.  Opinions  differ  as  to  the  respon- 
sibility of  the  protecting  states  to  foreign  countries  for  the 
acts  of  the  native  peoples  of  the  protectorate,  and  their  juris- 
diction over  the  subjects  of  such  countries  found  within  the 
protected  area.3  Whatever  views  may  be  held  on  these 
points,  it  is  beyond  doubt  that  the  assumption  of  a  colonial 
protectorate  is  a  sort  of  halfway  house  towards  complete 
annexation,  and  as  such  will  be  discussed  when  we  come  to 
deal  with  rights  over  territory.4  Such  protectorates  cannot 

1  Rivier,  Droit  International,  vol.  I,  p.  92. 

2  International  Law,  part  I,  p.  24  ;  see  also  Rivier,  vol.  I,  pp.  89,  90. 

8  Westlake,  Chapters  on  the  Principles  of  International  Law,  pp.  177-187  ; 
Hall,  Foreign  Jurisdiction  of  the  British  Crown,  pp.  204-227. 
*  See  §  80. 


78  THE  SUBJECTS   OF   INTERNATIONAL  LAW 

be  client  states,  for  they  are  not  states  at  all  in  the  sense  of 
being  members  of  the  family  of  nations  and  subjects  of  Inter- 
national Law.  In  so  far  as  its  rules  are  concerned  with  them, 
it  is  because  they  are,  as  it  were,  inferior  members  of  the 
household  of  an  important  international  person,  the  pro- 
tecting power. 

Permanently  neutralized  states  form  another  anomalous 
case.  There  are  but  three  of  them  in  Europe,  —  Switzerland, 
Belgium,  and  Luxemburg,  —  and  they  are  in  the  peculiar  con- 
dition that  their  permanent  neutrality  is  guaranteed  by  the 
Great  Powers  of  Europe  on  condition  that  they  do  not  go  to  war 
except  for  the  defence  of  their  own  territory  when  attacked, 
and  do  not  in  time  of  peace  enter  into  any  engagements 
that  might  lead  them  into  hostilities  for  other  than  purely 
defensive  purposes.  It  has  in  consequence  been  argued  that 
they  ought,  strictly  speaking,  to  be  reckoned  among  part- 
sovereign  states,  since  these  restrictions  amount  to  limita- 
tions of  independence.  A  fully  sovereign  state  can  make 
what  treaties  it  pleases  with  any  power  who  is  willing  to 
enter  into  stipulations  with  it,  and  go  to  war  whenever  it 
deems  that  circumstances  justify  so  extreme  a  step.  To  de- 
prive it  of  these  rights  is  to  restrict  its  external  sovereignty  ; 
and  when  a  state  is  made  to  suffer  such  a  deprivation,  not 
temporarily  and  for  a  special  purpose,  but  permanently  and 
as  a  condition  of  its  existence,  it  can  hardly  be  regarded  as 
an  international  person  in  the  fullest  sense  of  the  word.  On 
the  other  hand,  it  has  been  pointed  out  that  states  constantly 
limit  their  future  action  by  present  agreements,  and  that  such 
stipulations  are  not  held  to  derogate  from  sovereignty.  This 
is  perfectly  true  ;  but  then  the  agreements  are  made  by  an 
international  person  who  is  free  to  make  them  or  not,  as  he 
pleases,  and  can  withdraw  from  them  as  opportunity  offers, 
whereas  permanently  neutralized  states  do  not  possess  this 
freedom.  They  can,  of  course,  if  they  please,  make  war  and 
negotiate  in  defiance  of  the  treaties  of  guarantee  and  at  the 
risk  of  intervention  by  the  guaranteeing  powers.  But  this  is 


THE  SUBJECTS   OF  INTERNATIONAL  LAW  79 

only  another  way  of  saying  that  a  state,  like  a  man,  possesses 
the  physical  capacity  to  do  all  manner  of  forbidden  things, 
provided  that  it  is  willing  to  risk  the  consequences  in  the 
way  of  death  or  lesser  punishment.  It  is  also  true  that  per- 
manently neutral  states  are  not  placed  under  the  suzerainty 
or  protectorate  of  the  powers  who  have  guaranteed  their  neu- 
trality. The  little  bits  of  sovereignty  taken  away  from  them 
are  not  bestowed  elsewhere.  They  are  in  abeyance ;  and 
the  fact  that  they  are  shows  that  the  assumed  necessity 
for  the  existence  of  full  powers  of  sovereignty  as  regards 
every  part  of  the  civilized  world  is  no  necessity  at  all,  just 
as  the  division  of  sovereignty  between  client  and  patron 
states  shows  that  the  doctrine  of  the  indivisibility  of  sov- 
ereignty is  unsound.1  But  the  powers  of  which  the  govern- 
ments of  permanently  neutralized  states  are  deprived  are  so 
extremely  small  in  comparison  with  those  which  they  have 
in  full  possession,  and  the  position  occupied  by  such  states  as 
regards  rank,  honor,  and  influence  is  so  entirely  unaffected 
by  their  neutralization,  that  it  might  be  accounted  pedantry 
to  insist  on  classing  them  along  with  part-sovereign  states, 
though  they  may  not  lawfully  exercise  one  or  two  preroga- 
tives of  full  sovereignty.  They  are  anomalies  whose  anoma- 
lous character  requires  a  jural  microscope  to  discover  it. 
Therefore  they  had  better  be  treated  as  if  they  were  in  no 
way  anomalous. 

The  international  transactions  which  have  taken  place 
within  the  last  hundred  years  with  regard  to  outlying  parts 
of  the  Turkish  Empire  have  yielded  a  plentiful  crop  of  puz- 
zles and  anomalies.  He  would  be  a  bold  jurist  who  would 
undertake  to  give  a  direct  answer  to  the  simple  question 
whether  Cyprus  was  a  British  or  a  Turkish  possession.  The 
right  of  occupying  and  administering  it  was  granted  by 
Turkey  to  Great  Britain  under  a  Convention  of  1878 ;  but 
the  substantial  sum  of  £92,800  is  paid  yearly  by  the  British 

1  Westlake,  International  Law,  part  I,  pp.  27-30 ;  Oppenheim,  Inter' 
national  Law,  vol.  I,  pp.  140-144. 


80  THE  SUBJECTS   OF   INTERNATIONAL  LAW 

government  to  the  Porte,  as  representing  the  excess  of  reve- 
nue over  expenditure  at  the  time  when  the  island  changed 
hands.  In  the  case  of  Crete  we  have  at  the  present  moment 
(July,  1911)  the  Sultan  of  Turkey  as  nominal  suzerain ;  a 
High  Commissioner  appointed  by  the  four  guardian  powers, 
Great  Britain,  France,  Russia,  and  Italy ;  an  assembly,  all 
but  ten  of  whose  members  are  elected  by  the  people ;  do- 
mestic affairs  administered  by  the  High  Commissioner  and 
his  Council  of  Ministers,  and  foreign  affairs  in  the  hands  of 
the  representatives  of  the  four  powers  at  Rome.  The  people 
are  determined  on  annexation  to  Greece ;  Turkey  is  de- 
termined to  prevent  such  annexation  even  at  the  cost  of 
war ;  and  the  guardian  powers  are  determined  to  maintain 
the  status  quo,  which  seems  to  mean  that  the  Turkish  flag 
shall  fly  unmolested  on  a  rock  in  Suda  Bay,  and  the  islanders 
shall  be  free  to  cultivate  as  close  relations  with  Greece  as 
they  please  if  only  they  abstain  from  legal  union.  A  more 
extraordinary  tangle  it  is  impossible  to  conceive. 

The  position  of  Egypt  is  both  exceedingly  anomalous  and 
exceedingly  important.  There  can  be  no  doubt  that  by  the 
letter  of  international  documents  it  has  been  constituted  a 
part-sovereign  state  under  the  suzerainty  of  Turkey;  but 
there  can  also  be  no  doubt  that  the  real  authority  in  the  last 
resort  is  vested,  not  in  the  Sultan,  but  in  the  government  of 
Great  Britain.  The  country  was  for  centuries  a  province 
of  the  Ottoman  Empire.  In  1831  its  ruler,  Mehemet  Ali, 
revolted  against  the  Sultan.  After  some  years  of  successful 
warfare  he  was  on  the  point  of  taking  Constantinople,  when 
the  Great  Powers  interfered  and  compelled  him  to  restore  the 
larger  part  of  his  conquests.  But  by  the  Quadruple  Treaty 
of  1840,  and  the  Sultan's  Firman  of  June,  1841,  Egypt  was 
erected  into  an  hereditary  pashalic  under  the  rule  of  Mehemet 
Ali  and  his  descendants ;  and  by  these  and  subsequent  con- 
cessions the  title  of  Khedive  was  conferred  upon  the  ruler  of 
the  country,  and  he  obtained  many  of  the  rights  of  a  sovereign 
prince.  He  could  maintain  an  army,  contract  loans,  and  make 


THE  SUBJECTS   OF   INTERNATIONAL   LAW  81 

non-political  Conventions  with  foreign  powers;  and  though  by 
the  Firman  of  1879  the  number  of  Egyptian  soldiers  was  lim- 
ited to  eighteen  thousand,  and  a  few  other  restrictions  were 
imposed  upon  Tewfik  Pasha,  the  then  Khedive,  he  was  left  in 
possession  of  many  of  the  powers  of  external  sovereignty. 
The  position  of  the  Khedive  is  still  nominally  defined  by 
Firman,  but  the  state-paper  suzerainty  of  the  Porte  has  been 
practically  set  aside,  owing  to  the  power  exercised  over  Egyp- 
tian affairs,  first  by  England  and  France  acting  together,  and 
then,  after  the  withdrawal  of  France  from  active  cooperation 
in  1882,  by  England  acting  alone.  Since  Great  Britain  put 
down  in  that  year  the  revolt  of  Arabi  Pasha,  Egypt  has  been 
occupied  by  British  troops,  and  the  country  has  been  gov- 
erned under  British  advice.1  But  for  sixteen  years  its 
southern  provinces,  called  the  Egyptian  Soudan,  were  over- 
whelmed by  a  flood  of  dervish  fanaticism  and  maintained 
a  barbarous  independence.  The  Soudan  was,  however,  re- 
conquered by  an  Anglo-Egyptian  army,  which  in  1898 
overthrew  the  tyranny  of  the  Khalifa  in  a  great  battle  at 
Omdurman.  By  a  Convention  between  Great  Britain  and 
Egypt,  dated  January  19,  1899,  the  recovered  provinces 
were  placed  under  the  condominium  of  the  two  countries, 
and  they  have  been  administered  ever  since  by  a  Governor 
General  appointed  by  the  Khedive  with  the  advice  and  con- 
sent of  the  British  government.  Great  Britain  pledged  her- 
self before  her  occupation  of  Egypt  to  withdraw  as  soon  as 
she  had  restored  the  finances  and  created  a  satisfactory  native 
administration.  But  events  have  so  increased  her  responsi- 
bilities that  her  retirement  would  bring  ruin  on  the  country.2 
Her  position  has  been  regularized  by  an  agreement  with 
France,  under  date  April  8,  1904,3  and  its  subsequent  recog- 

1  Holland,  European  Concert  in  the  Eastern  Question,  ch.  IV. 

2  Debate  in  House  of  Commons,  Aug.  10,  1882,  Hansard,  3d  Series,  vol. 
CCLXXIII ;  Speech  of  Lord  Salisbury  at  Mansion  House,  Nov.  9,  1898.  . 

8  Appendix  to  vol.  I  of  Oppenheim's  International  Law ;  Supplement  to 
American  Journal  uf  International  Law,  vol.  I,  pp.  6-8, 


82  THE  SUBJECTS  OF   INTERNATIONAL  LAW 

nition  by  other  powers.  Thus  friendly  cooperation  has 
taken  the  place  of  distrust  and  intrigue,  and  a  happy  ending 
has  been  put  to  a  period  of  dangerous  tension.  According 
to  the  classification  we  have  adopted,  Egypt  is  undoubtedly 
a  client  state.  The  difficulty  is  to  find  its  patron.  Is  it 
Turkey,  the  state-paper  suzerain,  or  Great  Britain,  the  guid- 
ing and  controlling  power? 

The  Papacy  is  the  last  and  greatest  of  our  anomalies.  Till 
1870  the  Pope  was  a  temporal  sovereign.  In  that  year  an 
Italian  army  occupied  Rome,  which  was  immediately  added 
to  the  kingdom  of  Italy  and  made  its  capital.  The  Papal 
States  disappeared  from  the  map,  and  the  Pope  ceased  to  be 
in  fact  a  reigning  monarch,  though  he  still  retained  his  vast 
spiritual  authority.  In  1871  the  Italian  Parliament  defined 
his  position  by  a  statute  called  the  Law  of  Guarantees,  against 
which  the  occupants  of  the  papal  chair  have  never  ceased  to 
protest.  They  have,  however,  availed  themselves  of  some  of 
the  privileges  accorded  to  them  by  it,  though  none  of  them  has 
ever  touched  the  large  annual  sum  set  apart  therein  for  the 
upkeep  of  their  palaces  and  the  maintenance  of  their  diplo- 
matic staff. 

On  the  one  hand,  the  Pope  is  no  longer  the  head  of  a 
state.  Though  no  officer  of  the  Italian  kingdom  may  enter 
his  dwelling  without  his  consent,  yet  his  houses  are  not  his 
own  and  his  attendants  are  not  his  subjects.  He  may 
negotiate  concordats,  but  they  are  not  treaties.  His  agents 
abroad,  and  the  agents  he  receives  from  foreign  states,  enjoy 
diplomatic  immunities,  but  they  are  not  diplomatic  envoys. 
They  deal  with  the  affairs  of  a  church,  and  not  with  in- 
ternational intercourse.  On  the  other  hand,  the  honors  be- 
longing to  sovereigns  are  accorded  to  the  Pope.  His  person 
is  inviolable.  He  has  more  than  once  in  recent  times  acted 
as  mediator  and  arbitrator  in  international  disputes,  though 
his  representatives  have  been  refused  admission  to  the  Hague 
Conferences.  Two  important  non-Roman  Catholic  powers, 
Germany  and  Russia,  send  envoys  to  him,  though  they  do  not 


THE   SUBJECTS   OF   INTERNATIONAL   LAW  83 

receive  representatives  from  him.  It  is  quite  true  that  most 
of  the  privileges  and  immunities  he  possesses  are  conferred 
by  the  Law  of  Guarantees.  But  it  is  equally  true  that,  if 
they  were  withdrawn,  many  states  would  be  likely  to  inter- 
fere diplomatically,  and  some  perhaps  by  force  of  arms.  An 
Italian  statute  cannot  confer  international  personality  ;  but 
the  tacit  consent  of  a  large  number  of  states  to  treat  a  given 
prelate  as  if  he  possessed  some  of  the  attributes  of  an  inter- 
national person  puts  him  in  a  very  different  position  from 
that  of  an  ordinary  individual. 1  The  position  in  question 
is  undefinable.  From  the  point  of  view  of  International  Law 
the  Papacy  is  incapable  of  classification.  It  cannot  be  rec- 
ognized as  a  member  of  the  society  of  nations,  nor  can  it  be 
ignored  altogether.  But  the  insuperable  difficulties  con- 
nected with  it  are  a  testimony  to  the  strength  of  moral  and 
spiritual  influences  in  a  sphere  where  we  are  sometimes  told 
only  brute  force  counts  in  the  last  resort. 


§44 

Modern  International  Law  grew  up  among  the  states  of 
Europe  in  the  sixteenth  and  seventeenth  centuries.  Their  in- 
fluence helped  to  mould  it.  There  never  was  Admission  into 

,.  -i  ,i  ,     -j      >,  i  mi.  international  so- 

a  time  when  they  were  outside  its  pale.     They  ciety—  states 
formed  the  nucleus  of  international  society,  and  hithei;to  deemed 

•  alien  in  civihza- 

there  was  no  need  for  them  to  be  formally  turn  and  ideas. 
admitted  into  it.2  But  when  other  states  desired  to  enter 
it  and  come  under  the  rules  it  had  adopted,  a  necessity  for 
formal  reception  arose.  Practices  grew  up  and  soon  hard- 
ened into  custom,  till  now  we  find  that  the  admission  of  new 
international  persons  takes  place  in  three  different  sets  of 
circumstances. 


s,  Droit  International,  vol.  II,  pp.  311-323;  Despagnet,  Droit  Interna- 
tional Public,  pp.  147-161  ;  Higgins,  Article  in  Journal  of  the  Society  of 
Comparative  Legislation,  New  Series,  No.  xx,  pp.  252-264. 
2  Lawrence,  International  Problems  and  Hague  Conferences,  pp.  24-35. 


84  THE  SUBJECTS  OF   INTERNATIONAL   LAW 

The  first  occurs  when  a  state  of  another  civilization  or 
a  state  hitherto  accounted  barbarous  is  received  into  the  fam- 
ily of  nations.  This  was  the  case  with  Turkey,  when  by  the 
Treaty  of  Paris  of  1856  she  was  "admitted  to  participate 
in  the  advantages  of  the  public  law  and  system  of  Europe."1 
With  more  or  less  of  formality  and  completeness,  Persia, 
China,  and  Japan  have  been  accorded  a  similar  recognition. 
As  we  have  already  seen,  the  possession  of  a  fixed  territory 
and  a  certain  size  and  importance  are  essential  to  member- 
ship in  the  family  of  nations.  A  further  requisite  is  that 
the  state  to  be  admitted  shall  be  to  some  extent  civilized 
after  the  European  model ;  but  the  exact  amount  of  civiliza- 
tion required  cannot  be  defined  beforehand.  Each  case  must 
be  judged  on  its  own  merits  by  the  powers  who  deal  with 
it ;  and  it  is  clear  that  they  would  not  admit  a  state  into 
their  society  if  they  did  not  deem  it  sufficiently  like  to  them- 
selves in  organization  and  ideas  to  be  able  to  observe  the 
rules  they  have  laid  down  for  their  mutual  intercourse. 

§45 

Another  case  of  admission  is  exemplified  when  a  new  body 
politic  formed  by  civilized  men  in  districts  hitherto  left  to 
sutes  formed  by  nature  or  to  savage  tribes  is  recognized  as  an 

civilized  men  in          •      -j  j  rr,,        ,  . 

hitherto  uncivil-  independent  state.  The  history  of  the  Trans- 
vaal, or  South  African  Republic,  affords  an  ex- 
cellent example.  In  1836  a  number  of  Dutch  farmers  left 
Cape  Colony  and  went  into  the  wilds  of  South  Africa. 
Some  settled  in  the  district  now  known  as  the  colony  of 
Natal,  and  set  up  a  rudimentary  form  of  civilized  govern- 
ment. On  the  absorption  of  this  territory  by  the  British- 
Empire  they  again  moved,  and  joining  another  section  of 
the  original  emigrants  who  had  made  their  home  in  the  in- 
terior, established  themselves  in  the  upland  country  beyond 
the  river  Vaal.  In  1852  they  were  dealt  with  by  Great 
1  Holland,  European  Concert  in  the  Eastern  Question,  p.  246. 


THE   SUBJECTS   OP   INTERNATIONAL  LAW  85 

Britain  as  an  independent  state,  or  rather  series  of  states; 
for  the  various  communities  did  not  unite  into  one  whole 
till  1864.  Other  powers  followed  the  British  lead,  and  till 
1877  the  Boer  republic  was  an  international  person  in  the 
fullest  sense  of  the  word.1  Subsequent  events  led  to  a  peaceful 
annexation,  a  revolt,  the  establishment  of  what  was  called 
British  suzerainty,  a  war,  and  finally  the  extinction  of  the 
republic.  The  Peace  of  Vereeniging  of  May  31,  1902, 
marked  the  end  of  the  struggle  and  the  union  of  the  Trans- 
vaal territory  with  the  British  Empire.  A  further  ex- 
ample is  to  be  found  in  the  creation  and  recognition  of  the 
Congo  Free  State,  which  was  founded  by  the  International 
Association  of  the  Congo,  a  philanthropic  society  under  the 
direction  of  the  King  of  the  Belgians,  who  for  some  years 
provided  the  funds  necessary  to  carry  on  its  operations. 
These  were  directed  towards  the  formation  of  civilized  set- 
tlements in  the  vast  area  of  the  Congo  basin,  for  the  pur- 
pose of  combating  the  slave  trade  and  opening  up  the  coun- 
try to  legitimate  and  peaceful  commerce.  Treaties  were 
made  between  the  Association  and  numerous  native  tribes, 
whereby  it  acquired  an  enormous  territory,  with  a  popula- 
tion estimated  at  17,000,000  souls.  Its  boundaries  received 
definition  in  a  series  of  Conventions  and  Declarations  ne- 
gotiated in  1884  and  1885  with  the  various  states  repre- 
sented at  the  West  African  Conference  of  Berlin.  The 
Association  was  thereby  turned  into  an  international  person, 
called  the  Congo  Free  State,  and  the  signatory  powers 
recognized  its  independence  under  the  rule  of  King  Leo- 
pold II,  of  Belgium.  By  the  Final  Act  of  the  Conference  its 
territory  was  included  in  the  zone  within  which  all  na- 
tions were  to  enjoy  complete  freedom  of  trade,  and  by  the 
same  instrument  the  parties  to  the  Conference  bound  them- 
selves to  respect  its  neutrality  in  the  event  of  war,  as  long 
as  it  fulfilled  the  duties  that  neutrality  requires.  The 
new  state  thus  created  has  had  a  chequered  history.  In 
;-.'  1Bryce,  Impressions  of  South  Africa,  ch.  XL 


86  THE  SUBJECTS   OF  INTERNATIONAL   LAW 

1889  King  Leopold  executed  a  will  in  which  he  bequeathed 
his  sovereign  rights  over  it  to  Belgium.  Financial  difficul- 
ties having  arisen,  it  was  empowered  in  1890  by  the  signa- 
tories of  the  Final  Act  of  the  West  African  or  Congo 
Conference  to  levy  certain  moderate  duties  on  imports  for 
purposes  of  revenue.  Soon  after  this  date  the  high  humani- 
tarian ideals  which  had  been  so  loudly  proclaimed  by  the 
government  of  the  Congo  Free  State  in  its  early  days  began 
to  decay.  A  great  domain  of  the  Crown  was  created,  and 
vast  tracts  were  handed  over  to  concessionaire  companies, 
the  main  object  of  which  was  to  enrich  their  shareholders. 
Excessive  taxation,  forced  labor,  and  cruel  punishment 
were  the  lot  of  the  native  population  in  many  districts, 
though  in  others  they  were  well  treated  and  helped  to  rise. 
The  administration  of  justice  left  much  to  be  desired,  and 
the  freedom  of  commerce  stipulated  for  in  the  Final  Act  of 
the  Congo  Conference  was  often  impeded.  Reports  of  these 
things  reached  the  world  from  missionaries  and  consuls  in 
the  Free  State,  and  produced  a  great  effect.  After  years  of 
agitation,  pressure  from  abroad,  and  the  awakening  of  a 
large  section  of  the  Belgian  people  to  a  sense  of  the  iniqui- 
ties perpetrated  in  the  name  of  their  king,  brought  about 
in  1907  the  cession  of  the  Congo  Free  State  to  Belgium. 
During  the  following  year  the  transfer  was  approved  by 
the  Belgian  legislature,  and  an  elaborate  law  was  passed  to 
provide  for  the  government  of  what  has  now  become  the 
Belgian  Congo.  But  the  expected  reforms  were  not  carried 
out  with  energy,  such  changes  as  took  place  being  of  little 
value.  Both  Great  Britain  and  the  United  States  addressed 
diplomatic  remonstrances  to  the  Belgian  Government  in  their 
capacity  of  signatories  of  the  Final  Act  of  the  West  African 
Conference  and  parties  to  other  important  international 
agreements.  Neither  power  will  consent  to  recognize  the 
annexation  till  a  real  and  far-reaching  change  for  the  better 
has  taken  place.1  It  is  to  be  hoped  that  the  steps  taken 
by  Belgium  after  the  death  of  Leopold  II  in  1909  to  free 


THE   SUBJECTS    OF   INTERNATIONAL   LAW  87 

the  Congo  peoples  from  the  state  of  virtual  slavery  to  which 
large  numbers  of  them  have  been  reduced  will  prove  effective. 
A  third  instance  of  the  grant  of  recognition  as  states  to 
communities  of  men  who  have  established  civilized  rule  in 
uncivilized  districts  is  to  be  found  in  the  history  of  the  Re- 
public of  Liberia,  originally  founded,  like  the  Congo  Free 
State,  by  a  voluntary  association  of  individuals  leagued 
together  for  philanthropic  purposes.  In  this  case  the  asso- 
ciation was  The  American  Colonization  Society  for  the 
Establishment  of  Free  Men  of  Color  of  the  United  States. 
It  1821  it  obtained  from  the  native  chiefs  the  cession  of  a 
tract  of  territory  on  the  coast  of  Upper  Guinea,  and  sent 
thither  a  number  of  emancipated  negroes.  Liberally  assisted 
with  funds  by  the  American  Association,  this  community 
grew  into  an  organized  state,  which  in  a  few  years  declared 
itself  independent,  and  in  1847  assumed  the  title  of  the 
Republic  of  Liberia.  Great  Britain  was  the  first  power  to 
recognize  the  new  state,  which  she  did  by  negotiating  a 
formal  treaty  with  it  in  1848.  Since  that  time  other  coun- 
tries have  followed  her  example,  and  the  negro  Republic  is 
an  undoubted  member  of  the  family  of  nations,2  though  it 
lives  in  the  midst  of  difficulties  and  alarms  from  which  it 
shows  little  capacity  to  extricate  itself.3 

§46 

The  last  and  most  frequent  case   of   admission  into   the 
society  formed  by  civilized  states  occurs  when  recognition  of 
independence  is  given  to  a  political  community  states  whose  tn- 
that  has  cut  itself  adrift  from  the  body  politic  %g£^£ 
to  which  it   formerly  belonged  and    started   a  consequence  of 

•  separation  from 

separate  national  existence  of  its  own.      The  some  other  state. 
community  thus  recognized  must,  of  course,  possess  a  fixed 

1  British  Parliamentary  Papers,  Africa,  No.  4.  (1885);  Supplement  to  the 
American  Journal  of  International  Law,  vol.  Ill,  pp.  5-96 ;  Speech  of  Sir 
Edward  Grey  in  House  of  Commons,  May  27,  1909. 

2  Twiss,  Law  of  Nations,  Preface  to  second  edition. 

8  American  Journal  of  International  Law,  vol.  IV,  pp.  529-545. 


88  THE  SUBJECTS   OF  INTERNATIONAL  LAW 

territory,  within  which  an  organized  government  rules  in  civ- 
ilized fashion,  commanding  the  obedience  of  its  citizens  and 
speaking  with  authority  on  their  behalf  in  its  dealings  with 
other  states.  The  act  of  recognition  is  a  normal  act,  quite 
compatible  with  the  maintenance  of  peaceful  intercourse  with 
the  mother-country,  if  it  is  not  performed  till  the  contest  is 
either  actually  or  virtually  over  in  favor  of  the  new  commu- 
nity. Thus  the  recognition  of  the  independence  of  the 
United  States  by  those  powers  who  accorded  it  after  Great 
Britain  had  herself  recognized  them  as  independent  by  the 
preliminaries  of  1782  was  no  unfriendly  act  towards  her; 
but  their  recognition  by  France  in  1778,  when  the  contest 
was  at  its  height  and  the  event  exceedingly  doubtful,  was  an 
act  of  intervention  which  the  parent  state  had  a  right  to  re- 
sent, as  she  did,  by  war.  Again,  when  the  independence  of 
the  revolted  Spanish-American  colonies  was  recognized  by 
Great  Britain,  Spain  had  no  cause  to  complain  of  any  breach 
of  international  right,  because  no  recognition  was  accorded 
in  any  case  till  she  had  ceased  from  serious  efforts  to  restore 
her  supremacy,  though  on  paper  she  still  asserted  her  claims. 
Recognition  was  given  first  to  Buenos  Ayres  in  1824,  and  at 
that  time  the  contest  had  lasted  for  twenty  years  and  the 
colony  had  been  free  from  Spanish  rule  for  fourteen  years. 
The  case  of  Texas  and  its  recognition  by  the  United  States 
is  somewhat  similar.  In  1836  the  revolted  Texans  not  only 
defeated  the  Mexican  army  at  San  Jacinto,  but  took  the 
Mexican  President  prisoner.  The  further  attempts  of  Mex- 
ico to  regain  her  authority  were  absolutely  impotent,  and 
the  contest  was  over  when  the  United  States  recognized  the 
Texan  republic  in  1837.1  But  undoubtedly  political  neces- 
sities or  national  sympathies  will  sometimes  hasten  a  recog- 
nition, as  when  the  United  States  in  1903  recognized  the  in- 
dependence of  Panama  less  than  a  fortnight  after  she  had  cut 
herself  adrift  from  the  republic  of  Colombia,  and  five  days 

1  Historicus,  Three  Letters  on  Recognition;  Moore,   International  Law 
Digest,  vol.  I,  pp.  72-119. 


THE   SUBJECTS   OF   INTERNATIONAL   LAW  89 

after  the  recognition  signed  a  treaty  with  her,  providing 
facilities  which  Colombia  had  refused  for  the  construction  of 
a  canal  between  the  Atlantic  and  the  Pacific  by  the  American 
government.1  Moreover,  we  must  not  hastily  conclude  that, 
because  most  creations  of  a  new  state  by  separation  involve 
the  use  of  force,  therefore  none  have  been  carried  out  peace- 
fully. The  contrary  is  proved  by  the  quiet  recognition  of 
the  independence  of  Brazil  by  King  John  VI  of  Portugal  in 
1825,  and  the  bloodless  separation  of  Norway  from  Sweden  in 
1905. 

§47 

Recognition  may  take  place  in  various  ways.  Sometimes 
a  formal  declaration  of  recognition  is  made  in  a  separate 
and  independent  document,  and  it  was  in  this  The  various 
way  that  the  United  States  recognized  the  Congo  ^.Johnodosf  °^l™l~ 
Free  State  in  1884. 2  Sometimes  such  a  declara-  dence- 
tion  is  embodied  in  a  treaty  that  deals  with  other  matters 
also,  as  was  done  when  Germany  recognized  the  same  state 
in  the  same  year.3  Occasionally  the  recognition  is  made 
conditional,  as  when  the  independence  of  Roumania,  Servia, 
and  Montenegro  was  recognized  in  the  Treaty  of  Berlin  of 
1878  on  the  condition  that  they  imposed  no  religious  disabili- 
ties on  any  of  their  subjects.4  Recognition  may  be  effected, 
without  the  use  of  words  directly  according  it,  by  entering 
into  such  relations  with  the  recognized  community  as  are 
held  to  subsist  between  independent  states  alone.  Thus 
there  is  no  formal  statement  of  recognition  in  the  Treaty 
of  Amity  and  Commerce  between  France  and  the  United 
States  in  1778;  but  the  independence  of  the  revolted  colonies 
is  taken  for  granted  in  every  article,  and  they  covenant 
again  and  again  to  do  what  can  be  done  only  by  sovereign 

1  Moore,  International  Law  Digest,  vol.  Ill,  pp.  53,  55,  261. 

2  Supplement  to  the  American  Journal   of  International  Law,  vol.  Ill, 
PP-  5,0. 

3  British  Parliamentary  Papers,  Africa,  No.  4  (1885),  pp.  263-264. 

*  Holland,  European  Concert  in  the  Eastern  Question,  pp.  293-303. 


90  THE  SUBJECTS   OP  INTERNATIONAL  LAW 

states.1  The  sending  of  a  duly  accredited  diplomatic  rep- 
resentative,  as  was  done  by  the  United  States  in  the  case 
of  Texas,  has  the  same  effect  as  the  negotiation  of  a  treaty. 
Both  are  acts  of  sovereignty,  and  to  perform  them  towards 
an  aspirant  for  admission  into  the  family  of  nations  implies 
that,  as  far  as  the  state  that  does  them  is  concerned,  its 
desire  is  granted.  Recognition  by  one  state  in  no  way  binds 
others.  But  the  example,  once  set,  must  soon  be  followed, 
unless  the  newly  recognized  community  loses  almost  immedi- 
ately its  de  facto  independence,  or  is  so  small  and  unimportant 
as  to  be  neglected  with  impunity.  The  quickness  or  slowness 
of  recognition  is  often  determined  by  political  sympathies ; 
but  no  power  can  continue  for  an  indefinite  time  to  shut 
its  eyes  to  accomplished  facts.  When  a  province  or  colony 
has  won  a  real  independence,  recognition  of  it  must  come 
sooner  or  later,  even  from  the  parent  state.  The  lead  in 
these  matters  is  usually  taken  by  the  government  of  some 
influential  country.  Sometimes  the  Great  Powers  of  Europe 
acting  together  in  concert  agree  upon  recognition,  as  when 
they  admitted  Turkey  to  participate  in  the  advantages  of 
public  law  in  1856,  or  gratified  the  national  aspirations  of 
the  Balkan  States  in  1878.  In  these  cases  the  smaller  states 
followed  the  example  of  their  more  powerful  neighbors.  In- 
deed, the  Concert  of  Europe,  which  means  the  agreement  of 
the  six  Great  Powers,  may  be  said  to  represent  the  whole  of 
E  urope  in  such  matters  and  to  speak  on  its  behalf. 

§48 

Considered  as  members  of  the  society  of  nations,  states  are 

corporate  bodies  acting  through  their  governments.     Each 

continuity  of        state  is  bound  by  engagements  entered  into  by 

its  rulers  on  its  behalf,  as  long  as  they  were 

not  made  in  open  violation  of  its  own  law  and  constitution. 

Other  states  have  no  right  to  dictate  what  individual  or  body 

1  Treaties  of  the  United  States,  pp.  296-305. 


THE  SUBJECTS   OF   INTERNATIONAL   LAW  91 

in  a  state  shall  conduct  its  external  affairs.  They  must 
transact  their  business  with  those  who  are  legally  designated 
for  the  purpose.  All  they  have  a  right  to  demand  is  that 
there  shall  be  some  one  who  can  speak  on  behalf  of  their 
fellow-state  and  make  for  it  engagements  that  it  regards 
as  binding. 

The  continuity  of  a  state  is  not  affected  by  changes  in  the 
form  of  its  government  or  alterations,  whether  by  gain  or 
loss,  in  the  area  of  its  territory.  Whether  it  be  empire, 
kingdom,  and  republic  in  turn,  or  whether  it  remains  one  of 
these  for  centuries,  it  is  the  same  international  person 
throughout.  Other  powers  almost  always  recognize  a  new 
form  of  government  in  an  old-established  state,  in  order  that 
they  may  continue  to  do  business  with  it.  If  they  refuse 
such  recognition,  no  official  intercourse  is  possible  till  such 
time  as  they  change  their  policy.  But  the  state-person  re- 
mains throughout.  It  does  not  cease  to  exist  because  it  is 
ignored. 

A  state  does,  however,  lose  its  corporate  existence  when  it 
is  obliterated  as  a  subject  of  International  Law,  whether  by 
absorption  in  another  state  like  the  Transvaal  republic  or 
Texas,  or  by  entering  with  other  states  into  a  federal  union  as 
did  the  Swiss  Cantons  in  1848,  or  by  splitting  up  into  several 
states  as  did  the  original  republic  of  Colombia,  which  divided 
itself  in  1832  into  Venezuela,  Ecuador,  and  New  Granada, 
this  last  becoming  in  1863  the  present  republic  of  Colombia, 
from  which  Panama  split  off  in  1903.  Further,  the  formation 
of  an  incorporate  union  or  a  real  union  involves  the  extinc- 
tion of  the  international  personalities  of  the  states  that  com- 
pose it,  and  the  substitution  for  them  of  the  new  international 
personality  which  they  have  combined  to  form.  Moreover, 
there  are  other  changes  which,  though  they  do  not  bring 
state  existence  to  an  end,  alter  its  character  materially. 
Thus,  when  a  sovereign  state  becomes  a  part-sovereign 
state,  or  a  state  of  the  ordinary  type  accepts  permanent 
neutralization,  or  the  same  changes  take  place,  but  in  the 


92  THE  SUBJECTS   OP   INTERNATIONAL  LAW 

reverse  order,  the  state  survives,  though  its  nature  is  modified 
to  a  very  considerable  extent.1 

§49 

By  state  succession  is  meant  the  substitution  of  one  state 

for  another,  the  successor  continuing  to  enjoy  the  rights 

and   discharge    the   obligations    of   its    prede- 

State  succession.  _..        .  ,  ,  .,  .. 

cessor.  The  idea  of  succession  m  the  sense  of 
substitution  was  derived  from  Roman  Law,  by  which  the 
heir  took  up  the  persona  of  the  deceased  and  stepped  into  all 
his  legal  clothing.  Publicists  from  Grotius2  onwards  have 
adopted  this  idea  and  endeavored  to  introduce  into  Interna- 
tional Law  principles  and  rules  derived  from  the  Corpus  Juris 
Civilis.  But  inasmuch  as  a  state  differs  widely  from  an 
individual,  and  in  cases  of  cession  the  ceding  state  still  exists 
to  make  the  conditions  of  transfer  a  matter  of  bargaining,  it 
results  that  a  successor  state  never  occupies  the  exact  legal 
position  of  its  predecessor.  Consequently,  the  attempt  to 
apply  to  it  legal  theories  based  on  the  assumption  that  it 
does  leads  to  much  confusion.  Rules  are  stated  only  to 
be  modified.  Technicality  is  set  against  technicality;  and 
under  a  deceptive  appearance  of  strict  legal  reasoning  a  vast 
amount  of  doubt  and  disagreement  lies  concealed.  It  would 
be  much  better  to  abandon  the  technicalities,  and  fill  the 
place  of  deductions  from  them  with  constant  references  to 
the  practice  of  states.  To  some  extent  this  has  been  done 
already;  but  to  do  it  thoroughly  would  require  a  bulky 
volume  based  on  long  and  toilsome  research.  And  the  end 
would  be  that  a  few  admitted  principles  and  a  few  accepted 
rules  would  emerge  from  the  mass  of  cases.  Much  of  what 
remained  would  be  a  mere  chaos  of  conflicting  instances. 
But  here  and  there  it  would  be  possible  to  discern  a  ten- 
dency which  might  in  time  prevail  and  produce  a  new  rule. 
All  we  can  do  here  is  to  deal  very  briefly,  first,  with  com- 

1  Rivier,  Droit  International,  vol.  I,  pp.  65-69. 

2  De  Jure  Belli  ac  Pads,  bk.  II,  ch.  IX. 


THE  SUBJECTS   OF   INTERNATIONAL  LAW  93 

pleted  conquest,  and  afterwards  with  the  cession  by  one 
state  to  another  of  a  portion  of  its  territory.  Under  each 
head  we  shall  have  to  speak  of  both  persons  and  things. 

When  a  state  absorbs  bodily  all  the  territory  of  a  conquered 
enemy,  the  vanquished  state  disappears  as  an  international 
person.  Its  subjects  become  subjects  of  the  conqueror,  if 
they  continue  to  reside  on  the  transferred  soil.  But  if  they 
leave  the  territory  immediately,  or  were  not  in  it  when  the 
transfer  took  place,  and  do  not  return  to  it  for  a  permanent 
stay,  their  position  is  doubtful.  It  has  been  held  in  some 
cases  that  such  persons  were  subjects  of  the  conqueror ;  but 
the  tendency  in  recent  times  is  to  regard  them  as  belonging 
to  any  foreign  state  where  they  have  become  naturalized. 
Citizens  of  their  original  state  they  cannot  be,  since  it  has 
ceased  to  exist.1 

With  regard  to  property,  it  is  undoubted  law  that  the  con- 
queror takes  all  the  assets  of  the  vanquished  state  or  bellig- 
erent community.  The  question  whether  it  also  takes  all  the 
debts  and  is  bound  to  perform  the  contracts  of  the  extin- 
guished international  person  is  doubtful,  though  the  current 
of  opinion  seems  to  be  running  in  the  direction  of  an  affirma- 
tive answer.  Still  the  Transvaal  Concessions  Commissioners 
appointed  by  the  British  Government  in  1900  stated  in  the 
Introduction  to  their  Report  that  "a  state  which  has  annexed 
another  is  not  legally  bound  by  any  contracts  made  by  the 
state  which  has  ceased  to  exist."  But  the  weight  of  authority 
in  England  seems  to  be  against  them  ;2  and  they  themselves 
qualify  their  uncompromising  dictum  in  the  passages  that 
immediately  follow  it.  They  admit  that  "  the  modern  usage 
of  nations  has  tended  in  the  direction  of  the  acknowledg- 
ment of  such  contracts,"  and  express  approval  of  the  view 
that  "  the  obligations  of  the  annexed  state  towards  private 

1  Despagnet,  Droit  International  Public,  pp.  343-345 ;  Westlake,  Inter- 
national Late,  part  I,  pp.  69-71 ;  Cogordan,  La  Nationalite,  pp.  300-340. 

2  See  Westlake,  International  Law,  part  I,  pp.  81-83  ;  Hall,  International 
Law,  6th  ed.,  p.  99  ;  Oppenheim,  International  Law,  vol.  I,  p.  122. 


94  THE  SUBJECTS   OF  INTERNATIONAL  LAW 

persons  should  be  respected,"  with  certain  qualifications,  the 
most  important  of  which  is  that  "  an  annexing  state  would 
be  justified  in  refusing  to  recognize  obligations  incurred 
by  the  annexed  state  for  the  immediate  purposes  of  war 
against  itself."  In  fact,  they  based  the  recommendations  of 
their  report  on  the  principle  of  the  protection  of  every  one 
in  the  possession  and  enjoyment  of  rights  duly  acquired  on 
conditions  duly  performed.1  Thus  the  practice  of  Great 
Britain  on  this  occasion  supports  the  doctrine  that  the  suc- 
cessor state  takes  over  along  with  the  property  of  the  ex- 
tinct state  its  debts  and  obligations.  Some  jurists  hold  that 
this  extends  even  to  debts  incurred  for  the  purpose  of 
carrying  on  the  war  in  which  the  conquest  was  made.2  But 
\vhile  human  nature  remains  what  it  is  we  can  hardly  expect 
the  victors  to  make  good  the  sums  advanced  in  order,  if 
possible,  to  secure  their  defeat.  Another  point  still  dis- 
puted is  whether  the  obligation  to  pay  debts  extends  beyond 
the  assets  received.3  The  treaties  of  the  extinct  state  die 
with  it,  except  in  so  far  as  they  have  defined  the  boundaries 
of  the  transferred  territory,  or  created  rights  in  or  over  it, 
such  as  a  right  of  fishing  in  its  waters  or  a  right  of  transit 
over  its  railways.  On  the  other  hand,  the  treaties  of  the 
annexing  state  apply  to  the  annexed  state.4  It  goes  almost 
without  saying  that  among  civilized  states  conquest  makes 
no  difference  in  the  private  rights  and  duties  of  individual 
citizens. 

Much  that  has  been  said  about  the  transfer  of  a  state 
completely  by  conquest  applies  to  the  transfer  of  a  portion 
of  a  state  by  cession.  But  there  is  this  great  difference, 
that  in  the  latter  case  there  is  still  an  international  person 
left  to  negotiate  the  terms  of  the  surrender,  to  receive  the 

1  British  Parliamentary  Papers,  South  Africa,  1901,  Cd.  623,  pp.  6-8. 
-  Oppenheim,  International  Law,  vol.  I,  p.  123. 

3  Westlake,  International  Law,  part  I,  pp.  75-78- 

4  Despagnet,  Droit  International  PuWfc,  pp,  97-102 ;   Westlake,  Inter- 
national Law,  part  I,  pp.  59-62,  66-68. 


THE  SUBJECTS   OF   INTERNATIONAL   LAW  95 

allegiance  of  such  of  its  subjects  in  the  transferred  territory 
as  desire  to  retain  their  original  nationality,  to  enjoy  the 
rights  and  fulfil  the  obligations  of  its  treaties,  and  to  claim 
from  the  victor  the  performance  of  such  duties  as  it  deems 
to  be  imposed  on  him  in  respect  of  persons  and  things  in  the 
territories  he  has  acquired.  Change  of  nationality  is  of 
course  involved  in  every  case  of  cession.  The  inhabitants  of 
the  ceded  territory  become  subjects  of  the  state  to  which 
it  is  ceded.  But  a  practice  of  allowing  them  to  retain  their 
original  nationality  if  they  will  leave  the  ceded  territory 
began  with  the  capitulation  of  Arras  in  1640  and  the  transfer 
of  Strasburg  in  1697,  a  time  being  set,  generally  a  year, 
within  which  a  choice  must  be  made.  The  grant  of  a  per- 
mission to  this  effect  has  since  become  a  regular  stipulation 
in  treaties  of  cession.  It  was  at  first  accompanied  by  the 
condition  that  those  who  chose  the  alternative  of  departure 
must  sell  their  lands  and  houses  in  the  transferred  territory; 
but  there  has  been  only  one  survival  of  this  severity  in 
recent  times.  Option  has  been  given  so  constantly  that  it 
might  fairly  be  claimed  as  a  right,  even  if  a  treaty  of  cession 
contained  no  article  granting  it  in  express  terms,  or  in  the 
rare  cases  when  there  was  no  treaty  of  cession,  but  only  a 
silent  acceptance  on  the  part  of  the  dispossessed  state  of  the 
fact  of  conquest.  Many  difficulties  have  arisen  as  to  details. 
Does  the  change  of  allegiance,  and  by  consequence  the  liberty 
of  option,  apply  to  those  subjects  of  the  ceding  state  who 
were  domiciled  in  the  ceded  territory  at  the  time  of  the 
transfer,  or  to  those  who  were  born  in  it  ?  Does  the  right 
of  option  belong  to  married  women  and  minors,  or  is  their 
nationality  to  be  determined  for  them  by  their  husbands  and 
fathers  ?  If  minors  are  to  choose  for  themselves,  will  their 
time  of  option  be  extended  till  they  reach  years  of  discretion? 
To  these  and  similar  questions  no  definite  answers  can  be 
given  on  general  principles.  It  is  desirable  that  every  treaty 
of  cession  should  contain  explicit  rules  concerning  them.1 

1  Cogordan,  La  Nationalite,  pp.  300-346  ;  Westlake,  International  Law, 
part  I,  pp.  71-74  ;  Despagnet,  Droit  International  Public,  pp.  345-350. 


9G  THE  SUBJECTS   OF   INTERNATIONAL   LAW 

With  regard  to  state  property  and  state  obligations,  much 
of  what  has  been  said  in  connection  with  entire  absorption 
applies  to  cession.  But  in  the  latter  case  such  matters  as 
assumption  of  state  debt,  and  liability  for  the  performance  of 
state  contracts,  are  dealt  with  almost  in  variably  in  the  treaty 
between  the  losing  and  the  acquiring  power.  The  principle 
that  finds  most  favor  with  modern  jurists  is  that  the  suc- 
cessor state  should  assume  the  local  debt  of  the  ceded  terri- 
tory, and  discharge  the  local  obligations  legally  contracted 
with  regard  to  it  by  the  predecessor  state.  It  is  also  main- 
tained that  an  equitable  share  of  the  general  debt  should 
be  transferred  along  with  the  district  that  changes  hands. 
But  this  has  been  done  in  a  few  cases  only,  notably  when 
the  new  sovereign  wished  to  stand  well  in  the  eyes  of  the 
world,  as  did  Italy  when  in  1860  it  made  itself  responsible 
for  a  part  of  the  papal  debt  on  taking  over  a  part  of  the 
papal  dominions.  In  1898  the  United  States  refused  to 
burden  itself  with  the  debt  charged  on  Cuba  by  Spain,  nor 
would  she  allow  the  Cuban  government  to  be  saddled  with 
it.  And  in  1905  no  share  of  the  Russian  debt  passed  to 
Japan  along  with  the  southern  part  of  the  island  of  Sakhalin, 
which  was  ceded  by  Russia  with  "  all  public  works  and  prop- 
erties thereon."  Transferred  territory  in  passing  from  state 
to  state  leaves  behind  one  network  of  international  rights 
and  duties,  and  enters  another.  All  it  can  be  said  to  take 
with  it  are  its  local  rights,  local  obligations,  and  local 
possessions.1 

1  Westlake,  International  Law,  part  I,  pp.  60-63,  78-81  ;  Hall,  Interna- 
tional Law,  5th  ed.,  pp.  98,  99;  Takahashi,  International  Law  applied  to 
the  Russo-Japanese  War,  p.  775. 


CHAPTER  IV 

THE  SOURCES   OF   INTERNATIONAL  LAW 

§50 

WE  must  have  a  clear  idea  of  what  we  mean  by  the 
expression  sources  of  law  before  we  can  discuss  what 
are  the  sources  of  International  Law.  A  source  The  meaning  of 
of  a  river  is  the  place  whence  it  issues  as  a  ^ur^ITo/Mer- 
stream,  —  a  lake,  or  a  fountain  rising  from  the  national  Law. 
surface  of  the  earth.  If  we  followed  this  analogy  strictly, 
we  should  say  that  the  source  of  a  given  rule  of  law  would 
be  the  place  where  it  is  first  found.  But  the  rule  might 
first  be  found  in  the  form  of  a  suggestion,  a  mere  proposal 
put  forth  in  the  hope  that  it  would  obtain  acceptance;  and 
in  this  stage  it  would  not  be  true  law.  Law  must  indeed 
be  formulated,  but  it  must  also  receive  authority,  whereas  a 
river  needs  only  to  come  forth  into  the  light  of  day  in  order 
to  be  a  river,  whether  men  want  it  or  not.  If  we  take  the 
source  of  a  law  to  mean  its  beginning  as  law,  clothed  with 
all  the  authority  required  to  give  it  binding  force,  then  in 
regard  to  international  affairs  there  is  but  one  source  of  law, 
and  that  is  the  consent  of  nations.  This  consent  may  be 
either  tacit  or  express.  The  first  is  shown  by  custom ;  that  is 
to  say,  the  habitual  observance  of  certain  rules  of  conduct  by 
states  in  their  mutual  dealings,  though  they  have  not  sol- 
emnly bound  themselves  in  words  to  do  so.  Express  consent 
is  given  by  means  of  treaties,  or  international  documents 
having  the  force  of  treaties,  when  such  instruments  set 
forth  rules  of  conduct  which  the  signatory  powers  undertake 
to  observe  in  future.1 

If,  on  the  other  hand,  we  take  the  sources  of  International 
Law  to  be  the  places  where  its  rules  are  first  found,  whether 

1  Oppenheim,  International  Law,  vol.  I,  pp.  20-25. 
97 


98  THE  SOURCES   OF  INTERNATIONAL  LAW 

in  an  authoritative  or  an  unauthoritative  form,  we  must 
enter  into  an  historical  enquiry,  and  this  we  propose  to  do 
without  committing  ourselves  to  a  dogmatic  opinion  as  to 
which  of  the  two  senses  of  the  phrase  source  of  law  is  the 
more  proper.  Our  enquiry  has  nothing  to  do  with  the  rea- 
son why  the  rules  were  originally  invented  or  accepted. 
We  need  not  stop  to  enquire  whether  those  who  first  set 
them  forth  or  obeyed  them  did  so  because  of  their  con- 
formity with  a  supposed  law  of  nature  or  because  of  their 
obvious  utility,  whether  they  were  actuated  by  motives  of 
benevolence  or  by  motives  of  self-interest.  Doubtless  con- 
siderations of  various  degrees  of  respectability  have  pre- 
sided over  the  making  of  the  complex  mass  of  rules  we 
call  International  Law.  But  our  object  here  is  to  trace  the 
process  of  formation,  not  to  enter  into  the  mental  and  moral 
predilections  of  those  who  took  part  in  it.  And  we  must 
never  forget  that  no  rule  can  have  authority  as  law  unless 
it  has  been  generally  accepted  by  civilized  states.  Custom 
is,  as  it  were,  the  filter  bed  through  which  all  that  comes 
from  the  fountains  must  pass  before  it  reaches  the  main 
stream.  We  have  to  take  the  rules  we  find  in  operation 
to-day  and  trace  them  back  to  the  places  where  they  have 
their  origin.  In  doing  so  we  shall  find  that  the  sources  of 
International  Law,  in  the  sense  we  are  now  considering,  may 
be  resolved  into  five. 

§51 

First  among  the  sources  of  our  science  must  be  reckoned 

The  works  of  great  publicists. 

From  the  time  of  Gentilis  and  Grotius  down  to  the  present 
day  there  has  been  a  long  series  of  able  writers,  whose  works 
worts  of  great  have  influenced  the  practice  of  states  and  whose 
publicists.  published  opinions  are  appealed  to  in  interna- 

tional controversies.  They  occupy  a  position  analogous  to 
that  of  the  great  institutional  writers  on  Common  Law.  That 
is  to  say,  their  views  are  quoted  and  treated  with  respect  in 


THE   SOURCES   OF   INTERNATIONAL   LAW  99 

disputed  cases,  but  are  not  necessarily  decisive.  In  interna- 
tional controversies  the  longer  the  chain  of  authorities  in  sup- 
port of  any  particular  contention,  the  nearer  the  approach  to 
unanimity  in  the  opinions  of  jurists  of  recognized  position,  the 
more  likely  it  is  that  their  judgment  will  prevail.  Where 
there  are  two  opposing  schools  of  thought,  a  quotation  from 
one  author  of  repute  can  always  be  capped  by  one  from  another 
expressed  in  a  contrary  sense.  But  a  nation  that  should  dis- 
regard a  general  consensus  of  opinion,  in  which  its  own  pub- 
licists joined,  would  be  held  to  be  acting  in  a  high-handed 
and  aggressive  manner.  The  value  of  the  works  of  the  great 
international  jurists  is  by  no  means  confined  to  the  settlement 
of  points  that  are  so  far  doubtful  as  to  afford  matter  for  con- 
troversy. Many  rules  of  undoubted  validity  were  first  intro- 
duced into  the  law  of  nations  by  them.  We  have  but  to  take 
up  one  of  the  chapters  in  which  Grotius  pleads  on  behalf  of 
his  temperamenta  belli  in  order  to  find  stated  there,  for  the 
first  time  as  regards  their  international  application,  a  number 
of  humane  precepts  which  have  since  become  the  common- 
places of  belligerent  theory  and  practice.1  It  is  almost 
impossible  to  estimate  how  much  of  the  present  law  of  occu- 
pation and  jurisdiction  is  derived  from  principles  introduced 
by  the  Spanish  casuists  and  Protestant  civilians  who  first 
applied  the  rules  of  Roman  Law  to  the  international  problems 
raised  by  the  discovery  of  the  New  World.  The  extent  of  a 
state's  territorial  waters  to-day  is  decided  to  a  great  extent  by 
views  to  which  Bynkershoek  gave  currency  early  in  the  eight- 
eenth century;  2  and  the  work  of  Vattel  two  generations  later 
supplied  rule  after  rule  for  the  rapidly  growing  law  of  neutral- 
ity.3 With  him  the  great  formative  influence  of  the  publicists 
ceased.  International  Law  had  by  no  means  taken  its  final 
shape.  Indeed,  there  can  be  no  finality  about  it  while  the 
complex  society  of  nations  is  a  living  and  growing  reality. 
But  the  moulding  influences  passed  into  other  hands.  For 

1  De  Jure  Belli  ac  Pads,  bk.  Ill,  chs.  XI-XVI. 

2  DeDominio  Marts  (1702).  3  Droit  des  Gens,  bk.  Ill,  §§  103-135. 


100  THE  SOURCES   OF   INTERNATIONAL  LAW 

two  centuries  the  development  of  the  law  of  nations  had  been 
the  work  of  great  thinkers  and  writers.  It  now  became  the 
task  of  statesmen  and  lawyers.  It  was  not  that  the  publicist 
had  ceased  to  be  useful.  On  the  contrary,  the  need  for  him 
was  as  great  as  ever.  But  whereas  his  function  had  been 
mainly  formative  in  the  past,  he  was  for  the  future  mainly  to 
systematize  and  arrange,  to  reduce  to  principle  and  render 
consistent  with  themselves,  the  rules  evolved  from  con- 
troversies between  states  or  laid  down  in  the  practice  of  law 
courts.  And  general  consent  testifies  that  the  work  has  been 
well  done.  A  long  array  of  great  names  adorns  the  annals 
of  international  jurisprudence,  and  among  them  the  publicists 
of  Great  Britain  and  the  United  States  find  an  honored 
place.  A  race  that  has  produced  Kent  and  Wheaton,  and 
Manning  and  Phillimore,  and  Dana  and  Twiss,  not  to  men- 
tion a  host  of  others  still  alive,  has  done  no  ignoble  service 
in  the  cause  of  peace  and  justice.  Since  the  middle  of 
the  eighteenth  century  great  additions  have  been  made  to 
the  rules  that  govern  the  intercourse  of  states  ;  and  the 
services  of  jurists  in  sifting  and  arranging  the  new  matter 
have  been  invaluable.  They  have  produced  order  from  chaos 
and  made  International  Law  into  a  science,  instead  of  a  shape- 
less mass  of  undigested  and  sometimes  inconsistent  rules. 
And  in  most  cases  their  impartiality  has  been  as  remarkable 
as  their  industry  in  collecting  facts  and  their  power  of 
classification  in  coordinating  them.  National  bias  has  not 
been  altogether  absent ;  but  it  has  been  kept  under  severe 
control,  and  the  organization  of  the  Institut  de  Droit  Interna- 
tional, the  International  Law  Association,  and  the  American 
Society  of  International  Law,  with  their  frequent  publica- 
tions and  occasional  meetings  of  the  leading  publicists  of  all 
civilized  countries,  has  helped  enormously  to  eliminate  passion 
and  prejudice  from  the  discussion  of  the  problems  of  state 
intercourse.  There  should  be  something  of  the  judge  and 
something  of  the  philosopher  in  every  writer  on  International 
Law.  In  many  the  qualities  of  both  are  happily  combined, 


THE  SOURCES   OF   INTERNATIONAL  LAW  101 

and  there  are  very  few  who  degrade  themselves  to  the  level 
of  the  heated  partisan.  Doubtful  and  difficult  points  are  dis- 
cussed in  a  scientific  spirit  as  jural  problems,  and  without 
reference  to  their  bearing  on  the  interests  of  particular 
states.  Indeed,  it  often  happens  that  publicists  consider 
questions  as  to  which  no  international  controversy  has  arisen. 
The  opinions  expressed  are  then  of  necessity  unwarped  by 
national  pride  or  patriotic  sentiment ;  and  if  states  should 
hereafter  differ  with  regard  to  the  matters  in  question,  the 
views  set  forth  before  the  dispute  arose  will  have  the  merit 
of  absolute  impartiality. 

§52 

Next  among  the  sources  of  International  Law  we  place 

Treaties. 

Till  recently  there  was  a  wide  difference  of  opinion  with 
regard  to  their  value.  On  one  side,  the  view  was  held  that 
they  were  merely  agreements  between  states 
for  the  settlement  of  current  difficulties,  and 
possessed  little  or  no  importance  in  the  domain  of  interna- 
tional jurisprudence.  On  the  other  hand,  we  saw  them,  or 
rather  a  selected  number  of  them,  regarded  as  a  sort  of 
sacrosanct  repository  in  which  the  most  fundamental  princi- 
ples and  binding  rules  of  the  law  of  nations  are  to  be  found. 
The  writers  of  Great  Britain  and  the  United  States  in- 
clined to  the  former  view.  The  latter  was  common  among 
the  publicists  of  the  European  continent,  though  few  of  them 
would  have  been  prepared  to  state  it  in  the  extreme  form 
it  takes  in  the  works  of  Hautefeuille. 1  But  the  last  two 
decades  have  witnessed  such  a  wonderful  growth  of  treaties 
negotiated  for  the  purpose  of  making  rules  binding  on  all 
states  that  the  old  views  and  the  old  controversies  have 
become  obsolete,  and  we  are  able  to  put  in  their  place  a 
1  Droits  des  Nations  Centres,  Discours  Prfiliminaire. 


102  THE  SOURCES   OF   INTERNATIONAL  LAW 

new  and  generally  accepted  account  of  treaties  considered 
as  sources  of  International  Law.  We  must,  of  course,  dis- 
tinguish between  treaties  of  different  kinds  ;  but  our  classi- 
fication will  differ  somewhat  from  that  of  a  few  years  ago. 

We  will  consider  first  treaties  that  legislate.  These  may 
be  divided,  to  use  the  phraseology  of  Oppenheim,1  into  pure 
law-making  treaties  and  law-making  treaties.2  The  first 
are  treaties  the  object  of  which  is  to  formulate  openly  and 
avowedly  rules  of  conduct  which  are  meant  to  be  binding  on 
the  members  of  the  society  of  nations  as  a  body,  or  at  least  on 
all  of  them  who  are  directly  concerned  with  the  matters  re- 
ferred to  in  the  treaty.  The  more  conspicuous  examples  of  this 
kind  are  the  three  Conventions  of  the  Hague  Conference  of 
1899,  and  the  thirteen  Conventions  of  the  Hague  Conference  of 
1907.  The  second  are  treaties  which,  like  the  first,  lay  down 
the  rules  meant  to  be  of  general  obligation,  but,  unlike  the 
first,  refer  to  other  matters  also.  Thus  the  Treaty  of  Berlin 
of  1878,  in  raising  Roumania  and  Servia  to  the  rank  of  sover- 
eign states  and  recognizing  that  Montenegro  held  a  similar 
position,  legislated  for  the  family  of  nations,  and  is  therefore 
a  law-making  treaty;  but  inasmuch  as  its  provisions  were 
concerned  largely  with  countless  details  in  the  arrangements 
between  Turkey  and  several  other  powers,  it  cannot  be  called 
a  pure  law-making  treaty.  Both  kinds  are  important ; 
and  the  multiplication  of  the  latter  during  the  last  few  years 
marks  the  beginning  of  a  new  epoch  in  the  history  of  Inter- 
national Law.  We  have  now  a  statute  book  of  the  law  of 
nations,  and  it  will  soon  enter  on  its  second  volume.  Most 
of  it  is  taken  up  with  the  Hague  Conventions;  and  doubtless 
its  successors  will  be  filled  in  the  main  with  the  enactments 
of  the  successive  gatherings  of  the  quasi-legislative  body  we 
call  the  Hague  Conference.  But  they  do  not  supply  all  its 
contents.  Whenever  representatives  from  a  considerable 
number  of  states  meet  together  and  draw  up  a  body  of 

1  International  Law,  vol.  I,  pp.  23,  24,  618. 
a  See  §§  30-33. 


THE  SOURCES   OF   INTERNATIONAL  LAW  103 

rules  to  which  they  invite  the  adhesion  of  other  powers, 
they  produce  a  legislative  act,  provided  that  the  hoped-for 
adhesions  are  received  or  tacit  consent  is  given  by  mould- 
ing practice  on  the  model  set  forth  in  the  document.  This 
was  the  case  with  the  Declaration  of  Paris  on  maritime  law. 
(It  was  drawn  up  and  signed  in  1856  by  seven  powers.  But 
forty  adhesions  have  been  received  since,  and  belligerents 
have  observed  it  in  all  subsequent  naval  wars,  whether 
they  were  signatories  or  not.  Almost  the  only  power,  cer- 
tainly the  only  power  of  importance,  that  has  not  given  its 
express  consent  is  the  United  States ;  but  its  adhesion  may 
be  inferred  from  half  a  century  of  conduct  in  strict  conformity 
with  the  articles  of  the  Declaration.  Another  case  occurs 
when  all  the  powers  directly  concerned  in  an  important 
question,  or  series  of  questions,  settle  it  by  mutual  agreement, 
and  other  states  make  no  objection  at  the  time  and  conform  to 
the  arrangements  arrived  at  in  their  subsequent  practice. 
This  happened  with  regard  to  the  vast  regions  of  Central 
Africa  in  1885.  The  fourteen  powers  represented  at  the 
West  African  or  Congo  Conference  provided  for  complete 
liberty  of  commerce  in  the  Congo  basin  and  prohibition  of 
the  sale  and  transport  of  slaves  therein,  freedom  of  naviga- 
tion in  the  Congo  and  the  Niger  and  their  branches,  the 
neutrality  under  certain  conditions  of  the  territories  com- 
prised in  the  conventional  basin  of  the  Congo,  and  the  noti- 
fication to  one  another  of  all  future  occupations  and 
protectorates  on  the  coasts  of  Africa.1  Other  states  have 
since  recognized  the  provisions  made  for  these  objects  by 
conforming  to  them  and  accepting  the  benefits  conferred  by 
them.  The  Final  Act  of  the  Congo  Conference  is  therefore 
a  pure  law-making  treaty,  though  its  list  of  signatures  is 
not  so  imposing  as  those  which  appear  at  the  foot  of  the 
Final  Acts  of  the  two  Hague  Conferences.  General  usage 

1  British  Parliamentary  Papers,  Africa,  No.  4  (1885),  pp.  304-313; 
Supplement  to  the  American  Journal  of  International  Law,  vol.  3,  pp. 
7-25. 


104  THE  SOURCES   OF   INTERNATIONAL   LAW 

has  consecrated  what  partial  agreement  introduced;  and  the 
quiescent  attitude  of  states  entirely  unconnected  with 
Central  African  affairs  must  be  interpreted  into  an  otiose 
assent.  It  constantly  happens  that  small  and  comparatively 
uninfluential  states  tacitly  accept  the  arrangements  made 
by  great  and  important  powers.  The  doctrine  that  a  state 
cannot  be  bound  without  its  own  consent  is  true  only  if  we 
accept  as  a  corollary  the  proposition  that  assent  may  be 
evidenced  by  silent  acquiescence  as  well  as  by  express  words. 
And  even  then  we  have  to  remember  that  the  requirement 
of  universal  assent  as  a  condition  precedent  to  the  validity 
of  an  international  statute  must  be  interpreted  somewhat 
loosely.  If  a  few  small  states  not  specially  interested  in 
some  important  matter  stood  out  obstinately  against  an 
otherwise  universal  agreement  upon  it,  the  agreement  would 
nevertheless  be  true  law  for  the  society  of  nations.  It  would, 
for  instance,  be  foolish  to  assert  that  the  assent  of  Switzerland, 
which  does  not  own  a  ship  or  a  port,  is  necessary  to  give 
binding  force  to  a  Convention  for  altering  the  rules  of  mari- 
time law,  or  that  no  improvements  in  the  laws  of  warfare  on 
land  could  be  considered  universally  valid  if  they  lacked  the 
signature  of  Panama,  which  does  not  possess  a  standing  army. 
Treaties  that  legislate,  as  it  were,  incidentally,  and  in  the 
midst  of  doing  many  other  things  are  not  numerous,  and 
when  they  are  examined  it  is  easy  to  separate  the  rules 
and  arrangements  that  are  of  general  concern  from  those 
which  are  partial  and  particular. 

Treaties  declaratory  of  International  Law  require  some 
consideration.  They  are  law-making  in  so  far  as  they  are 
really  declaratory;  for  he  who  resolves  a  doubt  as  to  the  true 
meaning  of  a  rule  does  in  reality  make  a  rule.  But  they  are 
very  rare,  unless  we  include  among  them  the  portions  of  im- 
portant law-making  documents  which  do  no  nrore  than  put 
into  formal  words  observances  previously  adopted  in  practice 
by  the  most  advanced  nations.  This  was  the  case  in  many  of 
the  Hague  Conventions,  notably  those  which  set  forth  a  code 


THE  SOURCES  OP   INTERNATIONAL  LAW  105 

for  the  regulation  of  war  on  land.  The  Declaration  of  Lon- 
don of  1909  also,  in  elaborating  a  law  of  blockade  and  con- 
traband, gave  form  and  scientific  precision  to  many  rules 
which  most  of  the  powers  concerned  had  maintained  before- 
hand to  be  true  International  Law.  The  separation  of  the 
declaratory  portions  of  these  instruments  from  the  rest  would 
serve  no  useful  purpose,  while  causing  great  confusion  and 
opening  the  way  to  endless  controversies.  But  there  have 
been  a  few  treaties  and  parts  of  treaties  which  openly  claimed 
to  be  declaratory.  Such  were  the  Conventions  of  the  Armed 
Neutralities  of  1780  and  1800. 1  To  a  considerable  extent 
they  were  what  they  purported  to  be,  but  not  entirely,  for 
among  the  rules  they  laid  down  were  some  well  known  to  be 
inconsistent  with  established  practice  and  introduced  in  order 
to  curtail  the  belligerent  rights  of  Great  Britain.  A  curious 
case  of  what  we  may  call  an  attempt  at  semi-declaratory 
legislation  is  afforded  by  the  sixth  and  seventh  articles  of  the 
Treaty  of  Washington  of  1871. 2  The  three  rules  laid  down 
in  them  to  guide  the  arbitrators  who  were  to  decide  on  what 
were  known  generically  as  the  Alabama  claims  were  held  by 
the  United  States  to  have  been  in  force  when  the  acts  and 
omissions  complained  of  took  place,  while  the  British  Govern- 
ment declined  to  admit  this  view,  but  for  the  sake  of  an 
amicable  settlement  expressed  its  willingness  to  be  judged 
by  them  as  if  they  had  been  part  of  International  Law  when 
the  alleged  offences  took  place.  The  two  powers  agreed  to 
observe  the  rules  as  between  themselves  in  future,  and  to 
bring  them  to  the  knowledge  of  other  maritime  powers  with 
a  view  to  their  universal  acceptance.  This  was  never  done, 
partly  because  disagreements  arose  as  to  the  meaning  of 
several  clauses,  and  partly  because  it  became  known  that 
some  of  the  most  important  of  the  states  to  be  approached 
would  decline  to  accept  the  rules.3  The  case  remains  on 

1  C.  de  Martens,  Recueil,  vol.  I,  pp.  193,  194,  and  vol.  II,  pp.  216-219. 

a  Treaties  of  the  United  States,  p.  481. 

8  Moore,  International  Arbitrations,  vol.  I,  pp.  666-670. 


106 

record  to  show  that  one  party  to  a  treaty  may  regard  an 
article  in  it  as  declaratory,  while  the  other  holds  that  it 
enunciates  new  rules.  The  difficulties  of  this  type  of  legis- 
lation are  neither  small  nor  few.  But  it  is  sometimes  useful 
to  throw  important  changes  into  the  declaratory  form  in  order 
to  enable  states  to  avoid  the  appearance  of  surrendering 
views  they  have  previously  maintained. 

The  next  class  of  treaties  we  have  to  consider  consists  of 
those  which  stipulate  avowedly  for  a  new  rule  or  rules  be- 
tween the  contracting  parties.  They  are  signed  by  two  or 
three  states  only,  and  are  meant  to  establish  in  their  mutual 
intercourse  some  principle  of  action  not  in  general  use.  Thus 
they  are  evidence  of  what  International  Law  is  not,  rather 
than  of  what  it  is ;  for  if  the  rules  they  lay  down  had  been 
embodied  in  it,  there  would  have  been  no  need  of  special 
stipulations  in  order  to  obtain  the  benefit  of  them.  The 
Treaty  of  1785  between  the  United  States  and  Prussia  con- 
tains an  agreement  of  the  kind  under  consideration.  By  the 
thirteenth  article  the  contracting  powers  declared  that  in  case 
one  was  at  war  while  the  other  was  at  peace,  the  belligerent 
would  not  confiscate  contraband  goods  carried  by  a  vessel  of 
the  neutral,  but  would  be  content  to  detain  them  instead.1 
The  common  law  of  nations  gives  the  right  of  confiscation, 
as  the  negotiators  on  both  sides  well  knew.  And  because 
they  knew  it,  they  entered  into  stipulations  to  override  the 
ordinary  rule  and  substitute  for  it  one  that  they  preferred. 
It  is  clear  that  treaties  of  this  kind  are  not  sources  of  Inter- 
national Law.  Only  in  one  case  can  they  become  so,  and 
that  is  when  the  new  rule  first  introduced  by  one  of  them 
works  so  well  in  practice  that  other  states  adopt  it.  If  they 
take  it  up  one  by  one  till  all  observe  it,  the  first  treaty  in 
which  it  appears  is  its  source,  though  a  long  interval  of  time 
may  separate  its  original  appearance  from  its  final  triumph. 
An  instance  of  this  is  to  be  found  in  the  history  of  the 
famous  rule  free  ships,  free  goods.  The  first  treaty  between 
1  Treaties  of  the  United  States,  p.  903. 


THE   SOURCES   OF   INTERNATIONAL  LAW  107 

Christian  powers  which  contains  it  was  negotiated  between 
Spain  and  the  Netherlands  in  1650 ; J  and  is  therefore  its 
source,  though  the  rule  has  been  obliged  to  wait  till  our  own 
day  before  it  has  received,  in  the  Declaration  of  Paris  of  1856, 
such  general  acceptance  as  to  make  it  part  and  parcel  of  the 
public  law  of  the  civilized  world. 

The  last  and  most  numerous  class  of  treaties  consists  of 
those  which  contain  no  rules  of  international  conduct,  but 
simply  settle  the  matters  in  dispute  between  the  parties 
to  them.  Most  diplomatic  instruments  belong  to  this  class, 
for  as  a  rule  when  states  come  to  negotiate  they  are  far 
more  intent  upon  getting  rid  of  present  difficulties  than  lay- 
ing down  rules  and  doctrines  for  the  future.  Compromise  is 
the  order  of  the  day,  and  what  is  expedient  at  the  moment  is 
adopted  without  much  thought  of  its  relation  to  general 
principles.  It  is  obvious  that  treaties  negotiated  in  this 
spirit  do  not  affect  International  Law  at  all,  and  are  not 
intended  to  do  so. 

When  we  speak  of  treaties  we  must  be  understood  to 
mean  separate  articles  as  well  as  entire  documents.  Most 
international  instruments  contain  stipulations  on  more  mat- 
ters than  one,  and  important  treaties  generally  deal  with  a 
variety  of  subjects.  One  of  them  may,  therefore,  afford  ex- 
amples of  two  or  more  of  the  classes  just  described.  In  going 
through  these  classes  we  have  seen  that  within  recent  years 
there  has  been  built  up  by  treaty  a  body  of  rules  that  bear  a 
close  analogy  to  statutory  law.  States  have  so  far  freed  them- 
selves from  the  jealousies  and  suspicions  that  marked  their 
previous  history  that  they  are  able  to  come  together  peri- 
odically by  their  representatives,  and  deal  in  a  legislative 
manner  with  subjects  that  require  regulation.  Some  they 
have  attempted  in  vain  to  settle ;  others  they  have  not  ven- 
tured to  touch  as  yet ;  but  many  they  have  passed  upon 
with  a  success  that  bettered  expectation.  Though  much 
remains  to  be  done,  and  much  that  has  been  done  is  crude 
1Dumont,  Corps  Diplomatique,  vol.  VI,  part  I,  p.  671. 


108  THE  SOURCES  OP  INTERNATIONAL  LAW 

and  imperfect,  yet  the  progress  that  has  been  made  is  enor- 
mous ;  and  we  may  hope  that  increased  mutual  knowledge, 
joined  with  decreased  mutual  distrust,  will  soon  lead  to  even 
greater  results. 


§53 
We  now  pass  on  to  deal  with 

The  decisions  of  prize  courts,  international  conferences,  and 
arbitral  tribunals, 

considered  as  sources  of  International   Law.     Prize  courts 

are  tribunals  set  up  by  belligerent  states  for  the  purpose  of 

deciding  upon  the  validity  of  the  captures  made 

Decisions  of  prize  *  r  . 

courts,  interna-     by  their  cruisers.     They  are  supposed  to  admin- 

tional  conferences,    .  ,  •          i     T  i     ^-L  J  i 

and  arbitral  tri-  ister  International  Law,  and  they  do  so  unless 
the  properly  constituted  authorities  of  their 
own  states  order  them  instead  to  carry  into  effect  rules  in- 
consistent therewith.  Such  interferences  are  fortunately 
rare ;  and  accordingly  it  happens  that  the  decisions  of 
prize  courts  are  respected  in  proportion  to  the  reputation 
for  learning,  ability,  and  impartiality  enjoyed  by  their 
judges.  Those  who  preside  over  these  courts  have  to  re- 
member that  International  Law  has  no  locality,  and  must 
strive  to  divest  themselves  of  all  prepossessions  in  favor  of 
their  own  country.  As  one  of  the  most  distinguished  of 
them  said,  when  trying  a  case  in  which  the  claims  of  Great 
Britain  as  a  belligerent  came  into  sharp  conflict  with  the 
claims  of  Sweden  as  a  neutral,  "  It  is  the  duty  of  the  person 
who  sits  here  to  determine  this  question  exactly  as  he 
would  determine  the  same  question  if  sitting  at  Stockholm  ; 
to  assert  no  pretensions  on  the  part  of  Great  Britain  which 
he  would  not  allow  to  Sweden  in  the  same  circumstances  ; 
and  to  impose  no  duties  on  Sweden,  as  a  neutral  country, 
which  he  would  not  admit  to  belong  to  Great  Britain  in  the 


THE  SOURCES   OP  INTERNATIONAL   LAW  109 

same  character." J  This  high  standard  has  not  always  been 
reached  ;  but  some  of  the  great  ornaments  of  the  bench  have 
attained  to  it,  and  by  their  legal  acumen,  joined  with  their 
undoubted  impartiality,  have  enriched  the  literature  of  In- 
ternational Law  with  a  series  of  profound  judgments  which 
are  quoted  with  respect  wherever  competent  scholars  discuss 
the  rights  and  duties  of  civilized  states.  The  names  of  Story 
the  American,  Stowell  the  Englishman,  and  Portalis  the 
Frenchman,  will  live  as  long  as  the  law  of  nations  endures. 
Most  of  the  cases  which  come  before  prize  courts  require 
nothing  more  for  their  solution  than  the  application  of  well- 
known  and  universally  accepted  rules  ;  but  occasionally  a 
new  point  arises,  and  then  the  decision  of  a  great  judge  may 
become  a  source  of  International  Law.  At  the  moment  he 
does  no  more  than  determine  the  case  before  him  ;  but  the 
justice  and  reasonableness  of  the  rules  he  lays  down  may 
lead  to  their  acceptance  by  other  courts  and  in  other  coun- 
tries, and  thus  in  time  they  become  incorporated  into  In- 
ternational Law.  When  a  highly  trained  intellect,  after 
hearing  and  reading  carefully  sifted  evidence,  and  listen- 
ing to  the  arguments  of  able  counsel,  applies  recognized 
principles  to  new  circumstances,  the  result  is  not  unlikely 
to  be  a  rule  of  practice  that  stands  the  test  of  time  and 
proves  to  be  of  universal  application.  It  was  thus  that  the 
doctrine  of  continuous  voyages  was  introduced  into  Interna- 
tional Law.  Lord  Stowell  first  invented  it  to  meet  the  case 
of  neutral  vessels  which,  in  the  war  between  Great  Britain 
and  Revolutionary  and  Imperialist  France,  had  endeavored 
to  evade  a  prohibition  to  engage  in  the  enemy's  carrying 
trade  by  interposing  a  neutral  port  between  their  point  of 
departure  and  the  forbidden  destination.  Whatever  may  be 
thought  of  the  original  attempt  to  curtail  the  area  of  neutral 
mercantile  activity,  there  can  be  no  doubt  that  the  doctrine 
of  Lord  Stowell  was  sound  in  so  far  as  it  was  concerned 

1  Lord  Stowell's  Judgment  in  the  case  of  the  Maria;  see'  Robinson,  Admi- 
ralty Reports,  vol.  I,  p.  340. 


110  THE  SOURCES  OF   INTERNATIONAL  LAW 

with  the  actual  transit  of  ships  engaged  in  a  clearly  unlaw- 
ful trade.  It  could  therefore  be  applied  with  perfect  pro- 
priety to  cases  of  contraband,  where  the  right  of  the  bellig- 
erent to  interfere  is  clear  and  unmistakable.  Accordingly, 
the  rule  was  so  applied,  with  general,  though  by  no  means 
universal,  consent.  In  the  Civil  War  with  the  Southern 
Confederacy  the  courts  of  the  United  States  not  only 
adopted  it,  but  gave  it  an  extension  to  blockade  which  was 
looked  on  in  some  quarters  with  suspicion  and  dread.  But 
the  Declaration  of  London  of  1909  provided  for  the  settle- 
ment of  the  question  by  confining  the  application  of  the 
doctrine  to  absolute  contraband,  and  such  conditional  con- 
traband as  is  in  the  course  of  conveyance  to  a  belligerent 
country  that  has  in  its  territory  no  seaboard.1  The  pros- 
pect of  the  establishment  of  an  International  Prize  Court  on 
the  lines  laid  down  in  the  twelfth  of  the  Hague  Conventions 
of  1907,  opens  out  a  vista  of  great  and  continuous  improve- 
ment. In  dignity  and  influence  the  court  will  be  superior 
to  any  other  tribunal  on  the  face  of  the  earth.  Its  decisions 
will  interpret  and  develop  the  rules  of  maritime  warfare 
that  are  accepted  by  civilized  states.  With  the  Hague  Con- 
ference for  its  legislature  and  the  International  Prize  Court 
for  its  judiciary,  the  society  of  nations  will  have  taken  a 
gigantic  stride  forward  in  the  organization  of  that  inter- 
national justice  which  is  an  essential  condition  of  the  per- 
manence of  international  peace. 

The  activity  of  prize  courts  is  expended  for  the  most 
part  upon  questions  of  pure  maritime  law.  But  interna- 
tional conferences  and  arbitral  tribunals  deal  with  any 
matters  that  are  referred  to  them,  and  their  decisions  may, 
therefore,  embrace  subjects  wholly  removed  from  the  sea 
and  the  affairs  connected  with  it.  Thus  the  decision  of 
Marshal  MacMahon,  given  in  1875,  as  arbitrator  in  the  dis- 
pute between  Great  Britain  and  Portugal  with  regard  to 

1  British  Parliamentary  Papers,  Miscellaneous,  No.  4.  (1909),  Articles  19, 
30,  and  36  of  the  Declaration  of  London,  pp.  77,  81,  83.  See  §§  255,  257. 


THE   SOURCES   OF   INTERNATIONAL   LAW  111 

Delagoa  Bay,  did  much  to  clear  up  a  difficult  point  in  the 
law  of  occupation,1  and  the  decisions  of  the  West  African 
Conference  of  1884-1885,  upon  the  notifications  to  be  given 
to  one  another  by  the  parties  to  it  of  any  fresh  acquisition  of 
African  territory  by  occupation,  are  developing  into  a 
general  rule  of  International  Law.2 

§54 

Next  among  the  sources  of  International  Law  come 
International  state  papers  other  than  treaties. 

Treaties  are  national  acts  of  a  specially  deliberate  and 
solemn  kind,  and  are  rightly  placed  in  a  class  by  themselves. 
But  other  state  papers  may  be  important  as  state  papers  other 
sources  of  International  Law.  Questions  at  *"*  ******* 
issue  between  states  are  often  discussed  in  them  with  con- 
spicuous learning  and  ability,  and  occasionally  an  inter- 
national controversy  clears  up  a  disputed  legal  point  or 
advances  the  application  of  principles  that  have  before  re- 
ceived little  more  than  an  otiose  assent.  Thus  the  Silesian 
Loan  Controversy  between  Great  Britain  and  Prussia  in  the 
middle  of  the  eighteenth  century  3  placed  beyond  possibility 
of  doubt  the  rule  that  a  state  cannot  make  reprisals  upon 
money  lent  to  it  by  private  persons  belonging  to  another 
country.  And  again,  the  stand  taken  by  the  United  States 
Government  first  in  1793  in  favor  of  a  wide  interpretation 
and  strict  enforcement  of  its  own  neutrality  obligations,4 
and  afterwards,  nearly  half  a  century  ago,  against  a  some- 
what loose  interpretation  of  the  duties  of  neutrality  by  Great 
Britain  in  the  case  of  the  Alabama  and  her  sister  cruisers,6 
has  led  to  a  great  increase  in  the  strictness  with  which  the 
principle  of  absolute  impartiality,  conceded  on  paper  but 

1  See  §  74.  2  See  §  74.  8  See  §  174. 

*  See  §  223.  6  See  §§  219-220. 


112  THE  SOURCES   OF   INTERNATIONAL  LAW 

till  recently  not  very  closely  adhered  to  in  practice,  has 
been  applied  to  the  conduct  of  neutral  states.  The  contro- 
versies attending  the  formation,  progress,  and  dissolution  of 
the  two  great  leagues  known  as  the  Armed  Neutralities  of 
1780  and  1800 l  threw  almost  as  much  light  on  the  question 
of  neutral  rights,  as  the  Alabama  controversy  and  the  action 
of  Washington  in  his  second  administration  did  on  the 
question  of  neutral  duties.  Many  state  papers  are  from 
a  legal  point  of  view  worthless;  others  have  but  a  tem- 
porary and  evanescent  value.  But  now  and  again  some 
master  mind  produces  a  document  or  series  of  documents 
that  change  the  whole  course  of  international  relations 
and  become  sources  of  law.  It  must  be  remembered  that 
numerous  questions  arise  between  states  which  are  never 
heard  of  outside  the  walls  of  foreign  offices.  Either  they 
are  too  simple  to  admit  of  doubt,  or  they  are  at  once  re- 
ferred to  the  law  officers  of  the  governments  concerned, 
whose  opinion,  given  officially  but  not  published  at  the 
time,  if  ever,  is  taken  as  conclusive  and  acted  upon  immedi- 
ately. In  this  way  International  Law  is  always  undergoing 
a  process,  not  so  much  of  formation  as  of  crystallization. 
Floating  ideas  harden  into  definite  rules,  or  one  of  two 
opposite  views  receives  almost  imperceptibly  the  consecra- 
tion of  practice. 

§55 

The  last  of  the  classes  into  which  we  divide  the  sources 
of  International  Law  may  be  described  as 

Instructions  issued  by  states  for  the  guidance  of  their  own 
officers  and  tribunals. 

We  have  not  considered  these  documents  under  the  previ- 
ous head,  because  they  are  of  a  domestic  character,  and  are 
not  drawn  up  with  a  view  to  any  controversy  between  states. 
1  Manning,  Law  of  Nations,  bk.  V,  ch.  VI. 


THE   SOURCES   OF   INTERNATIONAL   LAW  113 

But  though  they  have  no  other  object  than  the  regulation  of 
the  conduct  of  the  agents  and  servants  of  the  government 
that  issues  them,  they  may  have  a  far  wider  In8tructionil  lg_ 
effect  than  was  intended  or  expected  by  their  6ued  *>y 8tates  top 

the  guidance  of 

authors.     When  drawn  by  skilled  jurists,  they  their  own  officers 

, .  1-11  •    j.        •  and  tribunals. 

sometimes  decide  knotty  points  in  a  manner 
which  proves  so  valuable  in  practice  that  other  states  adopt 
it.  The  French  Marine  Ordinance  of  1681  dealt  with  the 
then  nebulous  and  uncertain  subject  of  prize  law  in  a  mas- 
terly manner.  It  was  commented  on  by  Valin  in  1760,  and 
from  it  Lord  Stowell  borrowed  freely  in  his  judgments  on 
maritime  cases.  Thus  what  was  originally  intended  as  a 
guide  to  French  cruisers  and  French  tribunals  became  in 
time,  and  as  to  some  of  its  provisions,  a  source  of  Interna- 
tional Law.  The  Instructions  for  the  Guidance  of  the 
Armies  of  the  United  States  in  the  Field,  issued  in  1863,  have 
attained  a  similar  position.  They  have  been  referred  to  and 
quoted  with  great  respect  in  many  treatises,1  several  states 
have  issued  corresponding  manuals,  and  the  Hague  Code  for 
the  regulation  of  war  on  land  owes  much  to  them. 

We  have  now  been  through  the  various  sources  of  Inter- 
national Law.  We  see  that  any  national  act  whereby  a  state 
signifies  its  desire  to  adopt  a  given  general  rule  may  become  a 
source  of  law  provided  that  the  rule  in  question  is  a  new 
one.  If  it  wins  assent  it  becomes  a  part  of  International  Law. 
If  it  fails  to  be  adopted  in  practice,  it  is  but  a  pious  opin- 
ion, however  excellent  it  may  be  in  itself.  But  universal 
obedience  is  not  meant  when  we  speak  of  general  assent. 
Many  rules  of  International  Law  have  been  violated  on  one 
pretext  or  another  by  states  that  fully  acknowledged  their 
validity.  No  law  can  expect  to  be  always  obeyed,  least  of 
all  a  law  that  has  no  physical  force  at  its  back  to  compel 
submission  and  punish  disobedience.  But  though  Interna- 
tional Law  is  in  this  predicament,  it  is  also  true  that  flagrant 
and  stubborn  disregard  of  its  well-established  precepts  is  rare. 
1  E.g.  Maine,  International  Law,  p.  24. 


114  THE  SOURCES  OF  INTERNATIONAL  LAW 

States  on  the  whole  show  a  praiseworthy  willingness  to 
govern  their  conduct  towards  one  another  by  rules  to  which 
they  have  given  an  express  or  tacit  consent. 


§  56 

From  the  sources  of  International  Law  we  pass   to  its 

divisions.     There  is  no  subject  on  which  the  publicists  of  the 

seventeenth  and  eighteenth  centuries  are  more  at 

Divisions  of  Inter-  O 

national  Law.        variance  with  one  another  than  this.     Grotius, 

The  old  divisions  ,    -  .  .   .       .  . 

useless.  A  new     as  we  have  seen,1  distinguished  between  a  natu- 


one  suggested.  ^   ^   ft   yoluntary   Jaw    Qf    nati0nS.       His    SUC- 

cessors  discussed  at  length  the  relations  of  natural  law  to 
International  Law,  and  their  distinctions  and  conditions  mul- 
tiplied as  each  one  commented  upon  the  opinions  of  his 
predecessors.  A  process  of  simplification  began  early  in  the 
nineteenth  century  ;  but  even  Wheaton,  who  wrote  in  1836, 
accepts  the  distinction  between  a  natural  and  a  voluntary 
law  of  nations,  and  argues  that  the  voluntary  law  is  a  genus, 
comprising  the  two  species  of  conventional  law  introduced 
by  treaty,  and  customary  law  derived  from  usage.2  But, 
like  other  writers,  he  forgets  or  ignores  these  distinctions 
when  he  sets  forth  the  actual  rules  of  his  science.  He  does 
not  then  give  us  a  chapter  or  two  on  natural  law  and  many 
chapters  on  voluntary  law  with  its  two  great  subdivisions. 
But  instead  we  have  a  most  able  and  instructive  series  of 
chapters  on  the  various  rights  possessed  by  states,  and  on  war 
and  neutrality,  in  the  course  of  which  we  are  not  even  in- 
formed whether  a  given  rule  comes  from  convention  or  from 
usage,  so  completely  are  the  divisions  originally  given 
dropped  when  the  work  of  dealing  with  the  subject  in  a 
systematic  manner  is  seriously  undertaken.  Divisions  that 
do  not  divide  are  useless  ;  and  in  the  present  case  some  of 
them  are  mischievous  as  well,  for  they  imply  a  belief  in  the 

1  See  §  27.  2  International  Law,  §  9. 


THE   SOURCES   OF   INTERNATIONAL  LAW  115 

theory  that  by  some  process  of  reasoning  or  intuition  a  law 
can  be  evolved  which  is  binding  on  states  apart  from  their 
consent,  and  thus  tend  to  revive  the  old  confusion  between 
what  is  and  what  ought  to  be.  Instead  of  attempting  the 
unprofitable  task  of  distinguishing  the  rules  of  International 
Law  according  to  their  origin,  we  will  divide  the  subject  into 
heads  according  to  the  different  kinds  of  rights  possessed  by 
states  and  their  corresponding  obligations. 

If  we  make  our  attempt  at  division  on  the  lines  just  indi- 
cated, we  shall  find  at  once  that  states  possess,  by  virtue  of 
the  law  they  have  created  for  themselves,  certain  rights 
and  obligations  in  their  ordinary  condition  of  peace,  and 
that  certain  other  rights  and  obligations  are  obtained,  in 
addition  to  or  in  qualification  of  these,  when  a  state  is  in 
the  condition  of  belligerency  or  neutrality.  Fortunately, 
in  the  modern  world,  peace  is  regarded  as  the  usual  and 
proper  condition  for  nations.  No  writer  would  now  ven- 
ture to  say  with  Machiavelli,  "  A  prince  is  to  have  no 
other  design,  or  thought,  or  study,  but  war,  and  the  art 
and  discipline  of  it."1  We  have  come  to  regard  the  busi- 
ness of  good  government  as  the  most  important  art  of 
rulers  and  to  include  in  it  the  practice  of  all  honorable 
means  of  avoiding  war.  The  rights  and  obligations  which 
belong  to  states  in  their  capacity  of  members  of  the  fam- 
ily of  nations  are  connected  with  peace  and  the  state  of 
peace.  They  may  be  called  normal  rights  and  obligations 
and  they  are  possessed  by  every  independent  state  which  is  a 
subject  of  International  Law.  Just  as  the  law  of  the  land 
clothes  every  child  born  under  its  authority  with  certain 
rights  which  are  his  through  no  act  of  his  own,  so  Interna- 
tional Law  gives  to  the  states  under  its  authority  certain 
rights  which  belong  to  them  through  the  mere  fact  of  sub- 
jection to  it.  And  just  as  an  individual  can,  by  the  exercise 
of  his  will,  place  himself  in  a  position  whereby  he  acquires 
rights  and  obligations  he  did  not  possess  before,  so  a  state 
1  The  Prince,  ch.  XIV. 


116  THE  SOURCES   OF   INTERNATIONAL  LAW 

can,  by  an  act  of  corporate  volition,  place  itself  in  a  position 
whereby  it  acquires  rights  and  obligations  it  did  not  possess 
before.  No  man,  for  instance,  can  marry  without  making 
up  his  mind  to  do  so ;  and  no  state  can  go  to  war  or  remain 
neutral  in  a  war  between  other  states  without  making  up  its 
mind  to  do  so.  But  if  a  man  does  enter  into  matrimony,  he 
acquires  rights  that  did  not  belong  to  him  as  a  mere  subject 
and  citizen,  and  comes  under  obligations  that  were  not 
binding  upon  him  in  his  previous  condition ;  and  if  a  state 
becomes  a  belligerent  or  a  neutral,  it  acquires  rights  and 
becomes  liable  to  obligations  of  which  it  knew  nothing  as 
a  mere  subject  of  International  Law.  A  belligerent,  for  ex- 
ample, has,  in  the  right  of  search,  a  power  over  neutral 
vessels  it  could  not  exercise  in  its  ordinary  condition  of 
peace ; l  and  its  obligation  to  submit  to  restrictions  upon  the 
freedom  of  its  cruisers  to  stay  in  the  ports  of  friendly  powers 
and  buy  what  things  they  please  there,  modifies  a  previously 
existing  right  of  unrestricted  purchase.2  Those  rights  and 
obligations  which  a  state  possesses  as  a  belligerent  or  a 
neutral  we  may  call  abnormal,  to  distinguish  them  from  the 
normal  rights  and  obligations  that  belong  to  it  as  a  subject 
of  International  Law.  And  this  distinction  is  fundamental. 
It  gives  us  our  first  great  division,  and  is  the  pivot  on  which 
our  whole  classification  turns. 

§57 

Starting,  then,  with  the  normal  rights  and  obligations  of 
states,  we  find  that  they  are  concerned  with  independence, 
property,  jurisdiction,  equality,  and  diplomacy.  Each  of 
these  gives  us  an  important  subject  fairly  well  marked  off 
from  other  subjects,  and  capable  of  being  treated  by  itself  as 
a  distinct  head.  The  rules  of  International  Law  group  them- 
selves under  these  heads  in  a  convenient  manner  without 
much  overlapping  ;  and  we  thus  obtain  a  means  of  divid- 
1  See  §  186.  a  See  §  232. 


THE   SOURCES   OP   INTERNATIONAL   LAW 


117 


ing  one  portion  of  our  subject  into  titles  or  chapters  in  a 
way  that   shows   the   relation   of   its    various    parts  to   one 
another  and   to   the  whole.     The   other  great  Normal  rights 
division,  that  of  the  abnormal  rights  and  obli-  *r!f wfnn^ted'trith 
gations  of    states,    naturally   falls   under  two  independence, 

»  property,  juns- 

heads,  —  those  of  belligerency  and  neutrality,   diction," equality, 
But  each  of  these  involves  the  fact  of  war  and  abnormal  rights 
deals  with  it  in  a  different  light,  the  first  from  tvuh^vafand18 
the  point  of  view  of  those  who  are  engaged  in  neutrality, 
it,  and  the  second  from  the  point  of  view  of  those  who  are 
abstaining  from  it.     It  is  impossible  to  review  either  head 
without  taking  more  space  for  its  consideration  than  is  as- 
signed to  any  one  of  the  subjects  enumerated  in  connection 
with  normal  rights   and  obligations.     We   shall,   therefore, 
subdivide  each  of  the  two  when  we  come  to  deal  with  them 
in  detail.     Here  it  will  be  sufficient  to  remark  that,  since 
normal  rights  and  obligations  are  connected  with  peace,  we 
obtain  a  division  of  International  Law  into  the  Law  of  Peace, 
the  Law  of  Belligerency,  and  the  Law  of  Neutrality,  each  of 
which  will  be  considered  in  one  of  the  three  following  parts 
of  this  book.     The  subjoined  table  will  enable  the  student  to 
see  at  a  glance  the  arrangement  we  propose  to  adopt. 

INTERNATIONAL  LAW 

and  obligations  connected 
Independence. 

and  obligations  connected 
Property. 

and  obligations  connected 
Jurisdiction. 

and  obligations  connected 
Equality. 

and  obligations  connected 
Diplomacy. 

and  obligations  connected  I  Law  of 
Belligerency.  J      Belligerency. 

and  obligations  connected  1 
Neutrality.  J 


(1)   Rights 

with 

(2)   Rights 

Normal 

with 

rights  and 
obliga- 
tions of 

(3)   Rights 
with 

states. 

(4)    Rights 

with 

(5)   Rights 

with 

Abnormal 
rights  and 
obliga- 
tions of 

(1)    Rights 
with 
(2)   Rights 

states. 

with 

Law  of  Peace. 


Neutralifc 


PAET   II 

THE  LAW  OF  PEACE 
CHAPTER    I 

EIGHTS  AND  OBLIGATIONS  CONNECTED  WITH  INDEPENDENCE 

§58 

INDEPENDENCE  may  be  defined  as  the  right  of  a  state  to 
manage   all  its  affairs,  whether  external   or  internal,   without 
control  from  other  states.     This  right  of  inde-  Definition  and 
pendent  action  is  the  natural  result  of  sover-  ™ghtlffate- 
eignty  ;  it  is,  in  fact,  sovereignty  looked  at  from  pendence. 
the  point  of  view  of  other  nations.     When  a  state  is  entirely 
its  own  master,  it  is  sovereign  as  regards  itself,  independent 
as  regards  others.     Independence  is,  therefore,  predicated  by 
modern  International  Law  of  all  the  sovereign  states  who 
are  its  subjects. 

It  must  not,  however,  be  forgotten  that  till  the  downfall 
of  the  mediaeval  order  the  notion  of  universal  sovereignty 
was  the  dominant  conception  in  the  minds  of  thinkers  and 
writers  on  international  relations.  They  held  that  there  was, 
or  at  least  that  there  ought  to  be,  a  common  superior  over 
nations.  The  last  lingering  remnants  of  this  idea  were 
shattered  in  the  storms  of  the  Reformation,  and  the  doctrine 
of  the  independence  of  states  was  substituted  for  it  by  the 
great  jurists  to  whom  we  owe  the  form  that  International 
Law  has  assumed  in  modern  times.  There  is  a  tendency  on 
the  part  of  many  writers  to  regard  independence  and  sover- 

119 


120  BIGHTS  AND  OBLIGATIONS 

eignty  as  attributes  of  states,  conferred  on  them  in  some 
mysterious  manner,  quite  apart  from  the  provisions  of  the 
law  that  defines  their  rights  and  obligations.  We  are  told 
that  they  spring  from  the  nature  of  the  society  existing 
among  nations,  that  they  are  necessary  to  the  conception  of 
a  state,  or  that  they  are  conferred  by  the  Great  Author  of 
society.  Such  speculations  are  shown  to  be  baseless  by  a 
simple  reference  to  the  facts  of  history.  States,  like  indi- 
viduals, have  the  rights  conferred  on  them  by  the  law 
under  which  they  live.  There  was  a  time  when  their  full 
sovereignty  was  denied  by  the  law  then  existing.  But  since 
the  Peace  of  Westphalia  of  1648,  the  principle  of  complete 
independence  has  been  accepted  by  statesmen,  and  embodied 
in  the  international  code  of  the  civilized  world. 

§59 

Part-sovereign  states  do  not  possess  the  right  of  inde- 
pendence to  the  full,  though  to  save  appearances  they  are 
Part-soverei  n  sometimes  spoken  of  in  diplomatic  documents 
states  not  fully  as  independent.  But  it  is  clear  that  limitations 

Independent. 

on  their  external  sovereignty  are  also  limitations 
on  their  independence.  For  instance,  by  Article  4  of  the 
Treaty  of  February  27, 1884,  the  Transvaal  republic  of  South 
Africa  agreed  to  make  no  treaty  with  any  state  or  nation, 
other  than  the  Orange  Free  State,  nor  with  any  native  tribe 
east  or  west  of  the  republic,  without  the  approval  of  Great 
Britain.  Inasmuch,  therefore,  as  the  rulers  of  the  Trans- 
vaal were  bound  to  obtain  the  assent  of  Great  Britain  before 
they  could  take  effective  action  in  a  most  important  sphere, 
the  Boer  republic  could  not,  in  strictness,  be  said  to  possess 
the  full  rights  of  independence,  though  it  was  called  an  in- 
dependent state  in  treaties  and  despatches,  and  the  term  suze- 
rainty, which  had  appeared  in  the  Convention  of  1882,  had 
not  been  inserted  in  its  successor  of  1884.  In  the  negotia- 
tions preceding  the  final  rupture  with  Great  Britain  in  1899 
the  South  African  republic  claimed  to  be  "  a  sovereign  inter- 


CONNECTED   WITH  INDEPENDENCE  121 

national  state,"  which  it  certainly  was  not  if,  as  we  have 
been  arguing,  restrictions  on  external  sovereignty  are  also 
restrictions  on  independence. 

§  60 

Even  in  the  case  of  fully  sovereign  states,  and  in  regard 
to  the  conduct  of  the  most  powerful  among  them,  restrictions 
upon  unlimited  freedom  of  action  are  imposed  voluntary  restric- 
temporarily  by  events  and  circumstances  :  but  tions  uP°n  the 

r  J        J  freedom  of  action 

since  they  are  not  permanent  legal  incidents  of  of  sovereign 
the  political  existence  of  the  communities  sub- 
jected to  them,  but  are  in  the  main  necessary  conditions  of 
social  life  imposed  by  the  good  sense  of  the  powers  concerned, 
they  do  not  detract  from  the  independence  and  sovereignty 
of  the  states  that  live  under  them.  They  often  spring  from 
treaty  stipulations  entered  into  voluntarily  by  governments 
to  avoid  difficulties  in  their  future  intercourse.  For  example, 
the  United  States  and  Great  Britain  bound  themselves  by  the 
Clay  ton- Bulwer  Treaty  of  1850,  which  was  abrogated  and 
superseded  by  the  Hay-Pauncefote  Treaty  of  1901,  to  acquire 
no  territory  in  Central  America;1  and  in  1886  Great  Britain 
and  Germany  made  a  formal  declaration  whereby  the  limits  of 
their  respective  spheres  of  influence  in  the  Western  Pacific 
were  denned,  and  each  power  pledged  itself  not  to  intrude  into 
the  region  assigned  to  the  other.2  And  again  the  Declara- 
tions made  in  1907  by  Great  Britain,  France  and  Spain,  as  to 
the  maintenance  of  the  territorial  status  quo  of  these  three 
powers  in  the  Mediterranean,  and  the  similar  Declaration 
made  in  1908  by  the  powers  bordering  on  the  Baltic  and  the 
North  Sea,  partake  of  the  nature  of  self-denying  ordinances, 
since  they  pledge  their  signatories  to  refrain  from  disturbing 
the  existing  frontiers  in  the  district  to  which  they  apply.3 

1  Treaties  of  the  United  States,  p.  441. 

2  British  Parliamentary  Papers,  Western  Pacific,  No.  1  (1886). 

8  Supplement  to  the  American  Journal  of  International  Law,  vol.  I, 
p.  425,  and  vol.  II,  pp.  270-274. 


122  RIGHTS  AND   OBLIGATIONS 

Another  source  of  self-imposed  restrictions  upon  the  free- 
dom of  action  granted  by  the  right  of  independence  is  to  be 
found  in  consideration  for  the  corresponding  right  of  other 
states.  Just  as  in  the  society  formed  by  individuals,  friendly 
intercourse  would  be  impossible,  if  each  insisted  upon  using 
the  full  freedom  secured  to  him  by  law  without  regard  to  the 
feelings  and  convenience  of  his  neighbors,  so  in  the  society 
of  nations  a  similar  abstinence  is  necessary,  if  peace  and  har- 
mony are  to  be  preserved.  Mutual  concession  is  the  price 
paid  for  social  life.  A  state  that  conducted  its  foreign 
policy,  regulated  its  commerce,  and  exercised  its  jurisdiction 
without  thought  or  care  for  the  wishes  and  interests  of  other 
states,  would  doubtless  be  within  its  strict  right  as  an  inde- 
pendent political  community;  but  it  would  soon  discover 
that  it  was  regarded  as  an  international  nuisance  and  sub- 
jected to  an  exceedingly  unpleasant  process  of  retaliation. 

§  61 

Sometimes  an  independent  state  finds  itself  obliged  to 
submit  for  a  while  to  restraints  imposed  upon  it  by  superior 
involuntary  re-  f  orce,  as  when  Prussia  was  forbidden  by  Napo- 

strictions  upon  the    i  •       -t  o/\o    j_       i  o  ,1 

freedom  of  action  leon  m  loUo  to  keep  up  an  army  of  more  than 
of  sovereign  states.  40,000  men,1  and  Russia  and  Turkey  were  com- 
pelled by  the  Treaty  of  Paris  of  1856  not  to  build  "  military- 
maritime  arsenals  "  on  the  coast  of  the  Black  Sea,  and  not  to 
maintain  ships  of  war  thereon.2  Such  stipulations  as  these 
are  not  uncommon  in  the  history  of  international  transactions. 
They  are  frequently  imposed  on  a  defeated  belligerent  as 
part  of  the  price  of  peace.  The  powers  subjected  to  them 
constantly  evade  them,  and  always  take  the  first  opportunity 
of  throwing  them  off.  Prussia  foiled  Napoleon's  design  of 
keeping  her  powerless  as  a  military  state  by  passing  the  pick 
of  her  able-bodied  young  men  through  her  small  army  and 

1  Fyffe,  Modern  Europe,  vol.  I,  p.  382. 

2  Holland,  European  Concert  in  the  Eastern  Question,  p.  247. 


CONNECTED   WITH  INDEPENDENCE  123 

keeping  them  trained  in  a  reserve  force  ;  and  Russia  took 
advantage  of  the  Franco-Prussian  War  of  1870  to  obtain  by 
the  Convention  of  London  of  1871  a  formal  release  from  her 
engagements  as  to  the  Black  Sea.1  Such  limited  and  tempo- 
rary restraints  upon  the  freedom  of  action  of  a  state  are  not 
held  to  derogate  from  its  independence.  They  are  passing 
incidents  in  its  career,  not  permanent  legal  conditions  of  its 
existence.  And  the  same  thing  may  be  said  of  the  authority 
assumed  by  the  Great  Powers  of  Europe  in  the  Old  World 
and  the  United  States  on  the  American  continent.  There 
can  be  no  doubt  that  the  Great  Powers  have,  on  several 
occasions,  acted  in  the  name  and  on  behalf  of  all  Europe,2 
and  that  the  smaller  states  have  willingly  or  unwillingly 
accepted  the  arrangements  made  by  them.  In  America 
a  position  of  primacy  has  been  assumed  by  the  United  States. 
But  occasional  deference  to  the  will  of  one  or  the  other  of 
these  authorities  does  not  deprive  a  state  of  its  independent 
position  under  the  law  of  nations. 

§  62 

The  right  of  independence  conferred  by  International  Law 
upon  each  fully  sovereign  member  of  the  family  of  nations 
involves,  as  we  have  seen,  complete  liberty  on  T 

Intervention — its 

the  part   of  every   state  to  manage  its  affairs  essential  charac- 

J-  -j.  •   l,  T4-  1  teristics. 

according  to  its  own  wishes.  It  may  change 
its  form  of  government,  alter  its  constitution,  form  its  alli- 
ances, and  enter  upon  its  wars,  according  to  its  own  views  of 
what  is  just  and  expedient.  But  sometimes  it  happens  that 
another  state,  or  a  group  of  states,  interferes  with  its  pro- 
ceedings, and  endeavors  to  compel  it  to  do  something  which, 
if  left  to  itself,  it  would  not  do,  or  refrain  from  doing  some- 
thing which,  if  left  to  itself,  it  would  do.  Interference  of 
this  kind  is  called  intervention.  Both  internal  and  external 

1  Holland,  European  Concert  in  the  Eastern  Question,  p.  273. 

2  See  §§  113,  116. 


124  RIGHTS   AND   OBLIGATIONS 

affairs  have  been  subjected  to  it,  the  latter  more  especially. 
History  teems  with  instances  of  it.  It  has  been  undertaken 
on  various  pretexts,  and  justified  by  the  most  diverse  reason- 
ings. In  every  case  of  it,  the  burden  of  proving  justification 
rests  upon  the  intervening  power ;  for  it  always  seems,  and 
generally  is,  an  infringement  of  the  independence  of  the 
state  subjected  to  it,  though  there  are  exceptional  instances 
to  which  this  general  proposition  does  not  apply.1  Let  us  first 
distinguish  intervention  from  other  forms  of  interference 

O 

that  might  possibly  be  confounded  with  it;  and  having 
done  this,  we  shall  then  be  in  a  position  to  discuss  whether 
it  is  ever  justifiable,  and,  if  so,  in  what  circumstances. 

The  essence  of  intervention  is  force,  or  the  threat  of  force 
in  case  the  dictates  of  the  intervening  power  are  disregarded. 
It  is,  therefore,  clearly  differentiated  from  mere  advice  or 
good  offices  tendered  by  a  friendly  state  without  any  idea  of 
compulsion,  from  mediation  entered  upon  by  a  third  power 
at  the  request  of  the  parties  to  the  dispute,  but  without  any 
promise  on  their  part  to  accept  the  terms  suggested  or  any 
intention  on  its  part  to  force  them  to  do  so,  and  from  arbi- 
tration, which  takes  place  when  the  contestants  agree  to  refer 
the  dispute  to  an  independent  tribunal  and  consent  before- 
hand to  abide  by  its  award,  though  it  possesses  no  power  to 
compel  obedience  to  its  decisions.  There  can  be  no  inter- 
vention without,  on  the  one  hand,  the  presence  of  force, 
naked  or  veiled,  and  on  the  other  hand,  the  absence  of  con- 
sent on  the  part  of  both  the  combatants.  There  have  been 
instances  where  one  party  to  the  dispute  has  asked  for  the 
intervention  of  a  third  power ;  but  if  both  parties  agree  in 
such  a  request,  the  interference  ceases  to  be  intervention  and 
becomes  mediation.  Should  the  mediating  state  find  the 
parties  unwilling  to  accept  its  proposals  and  decide  to  compel 
them  by  force  of  arms,  its  action  would  then  lose  the  char- 
acter of  peaceful  mediation  and  assume  that  of  warlike  in- 
tervention. 

1  See  §  64. 


CONNECTED   WITH   INDEPENDENCE  125 

§63 

There  are  few  questions  in  the  whole  range  of  Inter- 
national Law  more  difficult  than  those  connected  with  the 
legality  of  intervention,  and  few  that  have  r 

°         J  General  considera- 

been  treated  in  a  more  unsatisfactory  manner,  tions  with  regard 
Some  writers  have  confined  themselves  to  gen- 
eral propositions,  while  others  have  devoted  much  time  and 
labor  to  an  examination  of  one  or  two  specific  instances  with 
regard  to  which  they  happened  to  hold  strong  opinions. 
But  it  must  be  remembered  that  an  attempt  to  discover 
rules  by  induction  from  recorded  cases  breaks  down  when 
applied  to  the  matter  in  hand.  An  appeal  to  the  practice 
of  states  is  useless  ;  for  not  only  have  different  states  acted 
on  different  principles,  but  the  action  of  the  same  state  at 
one  time  has  been  irreconcilable  with  its  action  at  another. 
On  this  subject  history  speaks  with  a  medley  of  discordant 
voices,  and  the  facts  of  international  intercourse  give  no 
clue  to  the  rules  of  International  Law.  We  might,  indeed, 
deem  that  the  search  for  rules  of  any  kind  was  hopeless, 
were  it  not  that  it  is  possible  to  infer  certain  clear  and  un- 
mistakable precepts  from  fundamentals  admitted  on  all  sides. 
No  one  doubts  the  existence  of  the  right  of  independence, 
or  the  duty  of  self-preservation,  and  from  these  we  are 
able  by  a  process  of  deduction  to  obtain  what  we  are 
seeking.  When  practice  is  diverse,  the  only  thing  left  is 
an  appeal  to  first  principles,  which  may  at  least  give  us 
moral  precepts,  even  when  it  fails  to  supply  us  with  legal 
rules. 

§64 

In  most  cases  the  question  of  intervention  is  a  question  of 
policy.    But  there  are  exceptional  circumstances  intervention  in 
in  which  it  is  a  matter  of  legal  right,  as  Oppen-  JJJ 
heim  points  out,1  though  the  right  is  sometimes  intervene. 

1  International  Law,  vol.  I,  pp.  183,  184. 


126  RIGHTS  AND   OBLIGATIONS 

merely  technical,  and  cannot  be  exercised  without  moral 
wrong.  We  refer  to 

Interventions  in  pursuance  of  a  right  to  intervene  given  by 
treaty  or  by  the  common  law  of  nations. 

If  a  state  has  accepted  a  guarantee  of  any  of  its  possessions, 
or  of  its  reigning  family,  or  of  a  special  form  of  government, 
it  suffers  no  legal  wrong  when  the  guaranteeing  state  inter- 
venes in  pursuance  of  the  stipulations  entered  into  between 
them,  though  it  may  suffer  moral  wrong  when  those  stipula- 
tions are  in  restraint  of  functions  it  ought  to  exercise  freely, 
for  example,  the  choice  of  its  rulers.  Further,  client  states 
are  under  obligation  to  submit  to  such  interference  and  direc- 
tion as  are  provided  for  in  the  instruments  that  define  the 
relation  between  them  and  their  patron  states.  The  inter- 
vention, for  instance,  of  the  United  States  in  Cuba  in  1906 
was  perfectly  legal,  as  it  came  well  within  the  terms  of  the 
agreement  of  1901.1  Moreover,  it  is  possible  that  an  arrogant 
state  might  presume  to  set  at  naught  some  fundamental  right 
given  by  International  Law  to  every  member  of  the  society 
of  nations,  such  as  the  inviolability  of  ambassadors  and  their 
residences.  In  such  a  case  all  states  would  be  injured  directly 
or  constructively,  and  all  would  have  a  legal  right  to  inter- 
vene, as  did  a  group  of  powers  in  China  in  1900  after  the 
murderous  attacks  on  foreign  envoys  in  Pekin.  The  same 
considerations  apply  to  interventions  undertaken  for  the 
purpose  of  preventing  or  ending  illegal  interventions  on  the 
part  of  another  state,  as  when  in  1866  the  United  States,  by 
significant  references  to  the  possibility  of  war,  caused  Napo- 
leon III  to  withdraw  his  troops  from  Mexico.  The  French 
expedition  had  been  sent  in  1861,  along  with  English  and 
Spanish  forces,  to  compel  the  payment  by  the  Mexican  gov- 
ernment of  certain  pecuniary  claims  and  the  redress  of  other 
grievances  ;  but  Great  Britain  and  Spain  withdrew  from  the 
enterprise  on  discovering  that  France  was  determined  to 
interfere  in  the  domestic  affairs  of  Mexico.  On  their  depar- 

i  See  §  39. 


CONNECTED   WITH   INDEPENDENCE  127 

ture  a  French  army  established  the  Archduke  Maximilian 
of  Austria  as  Emperor  of  Mexico  ;  but  after  its  withdrawal 
he  lost  in  a  few  months  his  throne  and  his  life.1  Inter- 
ventions by  right  are  clearly  lawful;  but  whether  they  are 
just  also  the  circumstances  of  each  case  must  determine. 
Certainly  they  do  not  violate  any  right  of  independence, 
because  the  states  that  suffer  them  have  either  conceded  a 
liberty  of  interference  beforehand  by  treaty,  or  accepted  it 
as  part  of  the  law  of  the  society  to  which  they  belong. 

§65 

We  now  turn  to  interventions  that  are  technical  viola- 
tions of  the  right  of  independence.     Therefore  Interventions  for 
no  strict  legality  can  be  claimed  for  them,  yet  7"*  n° 8trict. 

»  '   J          legal  right  can  be 

in  certain  circumstances  International  Law  may  claimed— those 

C     A-L  rrii  £•      ".      based  on  the  ne" 

excuse   or  even   approve  of   them.      I  he  first  cessity  of  self- 
cases  to  be  considered  are  protection. 

Interventions  to  ward  off  imminent  danger  to  the  intervening 

power. 

The  duty  of  self-preservation  is  even  more  sacred  than 
the  duty  of  respecting  the  independence  of  others.  If 
the  two  clash,  a  state  naturally  acts  on  the  former.  Nor  is 
the  doctrine  that  self-preservation  overrides  ordinary  rules, 
peculiar  to  the  law  of  nations.  In  every  civilized  state  a 
woman  who  slays  a  man  in  defence  of  her  honor  is  accounted 
blameless,  and  during  invasion  the  military  authorities  are 
allowed  to  destroy  property,  if  such  destruction  is  necessary 
for  the  performance  of  warlike  operations  against  the  enemy. 
By  parity  of  reasoning  we  obtain  the  rule  that  intervention 
to  ward  off  imminent  danger  to  the  intervening  power  is  justi- 
fiable. But  we  should  note  carefully  that  the  danger  must 
be  direct  and  immediate,  not  contingent  and  remote,  and, 
moreover,  it  must  be  sufficiently  important  in  itself  to  justify 

1  Moore,  International  Law  Digest,  vol.  VI,  pp.  483-606 ;  Calvo,  Droit 
International,  §§  118-125. 


128  EIGHTS   AND   OBLIGATIONS 

the  expenditure  of  blood  and  treasure  in  order  to  repel  it. 
The  mere  fear  that  something  done  by  a  neighboring  state 
to-day  may  possibly  be  dangerous  to  us  in  the  future  if  that 
state  should  happen  to  become  hostile,  is  no  just  ground  of 
intervention.  If  it  were,  nations  might  always  be  at  war 
to-day  to  prevent  war  fifty  years  hence !  Further,  the  cause 
that  justifies  intervention  must  be  important  enough  to 
justify  war.  Governments  constantly  submit  to  small  in- 
conveniences rather  than  resort  to  hostilities  ;  and  an  evil 
that  is  not  sufficiently  grave  to  warrant  a  recourse  to  the 
terrible  arbitrament  of  battle  is  not  sufficiently  grave  to 
warrant  intervention.  Moreover,  intervention  would  not  be 
justifiable  if  the  danger  could  be  met  in  any  other  way. 
But  inasmuch  as  the  intervening  state  must  be  itself  the  judge 
of  the  necessity  of  the  intervention,  there  is  a  tendency  for 
her  to  magnify  dangers  in  order  to  justify  attacks  really  due 
to  ambitious  aims  or  unscrupulousness  as  to  means.  On  the 
other  hand,  harsh  judgments  have  sometimes  been  pronounced 
against  her  out  of  dislike  of  her  policy  and  dread  of  her 
power.  Add  to  these  causes  of  bias,  honest  differences  of 
opinion,  and  we  shall  deem  it  in  no  way  wonderful  that  many 
interventions  have  been  subjects  of  much  controversy  both 
at  the  time  and  afterwards.  In  all  probability  men  will  differ 
as  long  as  International  Law  is  studied,  about  the  seizure  of 
the  Danish  fleet  by  Great  Britain  in  1807 x  and  the  interven- 
tion of  the  United  States  between  Spain  and  Cuba  in  1898. 2 

§66 

The  next  class  of  cases  for  which  the  permission  and  pos- 
sibly the  approval  of  the  law  of  nations  may  be  claimed  is 

Interventions  on  the  ground  of  humanity. 

In  the  opinion  of  some  writers  such  interventions  are  legal. 
But  we  cannot  venture  to  bring  them  within  the  ordinary 

1  Fyffe,  Modern  Europe,  vol.  I,  pp.  342-345 ;    Westlake,  International 
Law,  part  I,  pp.  302-303. 

2  Moore,  International  Law  Digest,  vol.  VI,  pp.  106-239. 


CONNECTED   WITH   INDEPENDENCE  129 

rules  of  International  Law,  which  does  not  impose  on  states 
the  obligation  of  preventing  barbarity  on  the  part  of  their 
neighbors.  At  the  same  time,  it  will  not  con-  T 

Interventions  on 

deinn  interventions  for  such  a  cause,  if  they  are  the  ground  of 
undertaken  with  a  single  eye  to  the  object  in 
view,  and  without  ulterior  considerations  of  self-interest  and 
ambition.  Should  the  cruelty  be  so  long  continued  and  so  re- 
volting that  the  best  instincts  of  human  nature  are  outraged 
by  it,  and  should  an  opportunity  arise  for  bringing  it  to  an 
end  and  removing  its  cause  without  adding  fuel  to  the  flame 
of  the  conflict,  there  is  nothing  in  the  law  of  nations  which 
will  brand  as  a  wrongdoer  the  state  that  steps  forward  and 
undertakes  the  necessary  intervention.  Each  case  must  be 
judged  on  its  own  merits.  There  is  a  great  difference  between 
declaring  a  national  act  to  be  legal,  and  therefore  part  of  the 
order  under  which  states  have  consented  to  live,  and  allowing 
it  to  be  morally  blameless  as  an  exception  to  ordinary  rules. 
A  state  may,  in  a  great  emergency,  set  aside  everyday  re- 
straints; and  neither  in  its  case  nor  in  a  corresponding  case  of 
individual  conduct  will  blame  be  incurred.  But,  nevertheless, 
the  ordinary  rule  is  good  for  ordinary  cases,  which,  after 
all,  make  up  at  least  ninety-nine  hundredths  of  life.  To  say 
that  it  is  no  rule  because  it  may  laudably  be  ignored  once  or 
twice  in  a  generation,  is  to  overturn  order  in  an  attempt  to 
exalt  virtue.  An  intervention  to  put  a  stop  to  barbarous 
and  abominable  cruelty  is  "  a  high  act  of  policy  above  and 
beyond  the  domain  of  law."1  It  is  destitute  of  technical 
legality,  but  it  may  be  morally  right  and  even  praiseworthy 
to  a  high  degree.  When  in  1860  the  Great  Powers  of  Europe 
intervened  to  put  a  stop  to  the  persecution  and  massacre  of 
Christians  in  the  district  of  Mount  Lebanon,  their  proceed- 
ings were  worthy  of  commendation,  though  they  could  not  be 
brought  within  the  strict  letter  of  the  law.2 

1  Historicus,  Letters  on  Some  Questions  of  International  Law,  L 

2  Cambridge  Modern  History,  vol.  XI,  p.  636, 


130  BIGHTS  AND  OBLIGATIONS 

§67 

From  the  middle  of  the  seventeenth  century  it  has  been  a 
maxim  of  European  diplomacy  that 

Interventions  in  order  to  preserve  the  balance  of  power 

were  necessary  and  just.  The  significance  attached  to  the 
theory  of  a  balance  of  power  has  varied  from  time  to  time. 
It  used  to  be  held  that  a  sort  of  international  equilibrium  of 
forces  had  been  established,  and  that  any  state 
£££!5£  *hat  attempted  to  destroy  its  nice  adjustments 
of  the  balance  of  might  be  attacked  by  others  whose  relative  im- 
portance would  be  diminished  if  it  were  per- 
mitted to  carry  out  its  projects.  For  a  long  time  this 
doctrine  was  accounted  axiomatic.  It  had  only  to  be  stated 
to  be  accepted.  To  preserve  the  balance  of  power,  states 
kept  up  standing  armies,1  entered  into  wearisome  negotiations, 
and  waged  incessant  wars.  And  the  history  of  some  of  these 
wars  furnishes  a  most  complete  condemnation  of  the  theory 
that  was  invoked  to  justify  them.  If,  for  instance,  success 
had  attended  the  attempt  of  the  allies  in  the  War  of  the  Span- 
ish Succession  to  seat  the  Archduke  Charles  instead  of  Philip 
V  on  the  throne  of  Spain,  they  would  have  brought  about  the 
very  disturbance  of  the  European  equilibrium  that  they  took 
up  arms  to  prevent ;  for  Philip  never  inherited  the  French 
kingdom,  whereas  Charles  unexpectedly  became  emperor  in 
1711.  Had  he  reigned  in  Madrid,  the  Imperial  and  Spanish 
crowns  would  have  been  united  on  one  head,  —  a  consumma- 
tion as  full  of  danger  to  the  balance  of  power  as  the  union 
of  France  and  Spain  under  one  king.  If  the  Allies  had  been 
content  to  wait  for  the  anticipated  peril  to  become  real  before 

JSee  Preamble  to  the  old  British  Mutiny  Act:  "And  whereas  it  is  ad- 
judged necessary  by  His  Majesty  and  this  present  Parliament  that  a  Body  of 
Forces  should  be  continued  for  the  Safety  of  the  United  Kingdom,  the 
Defence  of  the  Possessions  of  His  Majesty's  Crown,  and  the  Preservation  of 
the  Balance  of  Power  in  Europe." 


CONNECTED   WITH  INDEPENDENCE  131 

they  took  up  arms  to  avert  it,  they  need  not  have  gone  to 
war  at  all.1 

A  political  system  that  tends  to  stereotype  the  existing 
order  of  things  in  international  affairs  is  fatal  to  progress. 
Yet  underlying  the  older  theory  of  the  balance  of  power 
was  always  the  assumption  that  the  division  of  territory  and 
authority  among  the  chief  states  of  Europe  at  any  given  time 
was  the  right  and  proper  division,  and  must  be  maintained 
at  all  costs.  In  actual  fact,  the  order  which  it  was  sought 
to  preserve  was  constantly  changing.  At  one  period  the 
state  of  possession  established  by  the  Peace  of  Vienna  of 
1815  was  regarded  as  sacred,  at  another  the  appeal  was  to 
the  Peace  of  Utrecht  of  1713,  at  a  third  to  that  of  West- 
phalia of  1648.  The  world  moved  in  spite  of  the  efforts  of 
rulers  to  keep  it  stationary,  and  they  had  to  adjust  their 
schemes  to  its  changes.  But  in  doing  so  they  found  in  the 
idea  of  a  balance  of  power  a  cloak  for  ambitious  designs. 
If  one  state  desired  to  pick  a  quarrel  with  another,  it  was 
easy  to  allege  that  some  action  on  the  part  of  the  latter 
threatened  the  European  equilibrium.  Under  cover  of  such 
an  accusation  demands  for  concessions  of  all  kinds  could  be 
made.  The  last  development  of  the  balance  theory  in  this 
direction  was  due  to  the  ingenuity  of  the  Emperor  Napoleon 
III.  He  put  forth  the  doctrine  that  whenever  another  state 
was  greatly  aggrandized,  France  must  have  territorial  com- 
pensation, in  order  that  the  relative  power  of  the  two  nations 
might  remain  constant.  He  obtained  the  cession  of  Savoy 
and  Nice  in  1860  as  compensation  for  the  union  of  central 
Italy  and  Piedmont ;  but  he  failed  entirely  in  his  efforts  to 
obtain  similar  territorial  compensation  for  the  unification  of 
North  Germany  in  1866.2  Prince  Bismarck  alleged  that  such 
a  spirit  of  German  patriotism  had  been  aroused  by  the  victo- 
ries of  Prussia,  that  it  was  impossible  for  him  to  cede  a  yard 
of  German  territory  to  France.  In  saying  this,  he  inciden- 

1  Wheaton,  History  of  the  Law  of  Nations,  part  1,  §  2. 
*  Cambridge  Modern  History,  vol.  XI,  pp.  386-388,  457. 


132  BIGHTS  AND   OBLIGATIONS 

tally  laid  bare  the  main  defect  of  the  original  theory  of  a 
balance  of  power.  It  distributed  provinces  and  rounded  off 
the  boundaries  of  kingdoms  without  regard  to  the  wishes 
of  the  populations  and  their  affinities  of  race,  religion,  and 
sentiment.  It  repressed  popular  movements  when  they  in- 
terfered with  its  calculations.  Italian  unity  and  German 
unity  were  achieved  in  spite  of  it ;  and  it  is  bound  to  lose  in- 
fluence as  the  wishes  of  peoples  become  more  and  more  a  neces- 
sary element  in  the  calculations  of  rulers.  It  can  be  credited 
with  but  one  good  result.  It  did  sometimes  act  as  a  restraint 
upon  unscrupulous  rulers,  as  when,  in  1668,  the  Triple  Alli- 
ance of  England,  Sweden,  and  Holland,  without  firing  a  shot, 
caused  Louis  XIV  to  renounce  for  a  time  his  designs  upon 
the  Spanish  Netherlands.  But  such  satisfactory  effects  were 
rather  accidental  than  essential.  If  would-be  plunderers 
could  agree  beforehand  on  a  division  of  the  spoil,  and  con- 
trive to  silence  the  objections  of  less  interested  neighbors, 
their  victim  would  not  be  saved  by  any  regard  for  a  balance 
of  power  which  remains  unaffected  by  the  transaction.  This 
statement  finds  ample  proof  in  the  history  of  the  three  parti- 
tions of  Poland  between  Austria,  Prussia  and  Russia.  Fortu- 
nately for  them,  the  people  of  the  United  States  have  never 
been  brought  face  to  face  with  an  international  system  based 
upon  the  old  version  of  the  doctrine  of  a  balance  of  power. 
The  political  circumstances  of  the  New  World  have  pre- 
vented the  growth  of  such  a  system  on  the  American  conti- 
nent, and  its  importation  from  Europe  has  been  avoided, 
owing  to  the  wise  policy  of  successive  administrations  from 
that  of  President  Monroe  onwards.1 

But  in  modern  times  the  theory  has  taken  another 
form  which  embodies  a  great  truth  and  is  not  so  easily 
perverted  to  evil  as  was  the  original  version.  As  we  have 
seen,  the  existence  of  International  Law  involves  the  exist- 
ence of  a  society  of  nations.  Membership  of  a  society 
implies  social  duties,  and  among  them  a  foremost  place  is 
1  Despagnet,  Droit  International  Public,  pp.  171-177. 


CONNECTED    WITH    INDEPENDENCE  133 

held  by  the  duty  of  abstaining  from  conduct  that  endangers 
the  vital  interests  of  the  society  as  a  whole.  When  a  mem- 
ber persistently  violates  this  duty,  another  member  or  group 
of  members  may  vindicate  social  well-being  by  active  mea- 
sures of  restraint.  If,  therefore,  a  powerful  state  frequently 
endeavors  to  impose  its  will  on  others,  and  becomes  an 
arrogant  dictator  when  it  ought  to  be  content  with  a  fair 
share  of  influence  and  leadership,  those  who  find  their  re- 
monstrances disregarded  and  their  rights  ignored  perform  a 
valuable  service  to  the  whole  community  when  they  resort 
to  force  in  order  to  reduce  the  aggressor  to  its  proper 
position.  As  the  duty  of  self-preservation  justifies  inter- 
vention to  ward  off  imminent  danger  to  national  life  or 
honor,  so  the  duty  of  preserving  international  society 
justifies  intervention  to  bring  to  an  end  conduct  that  im- 
perils the  existence  or  healthful  order  of  that  society.  It  is 
true  that  in  eac-h  case  the  independence  of  the  offending  state 
is  for  the  moment  violated;  but  the  less  must  give  way  to 
the  greater  in  order  to  attain  a  good  end.  The  balance  of 
power,  understood  in  the  sense  just  indicated,  ought  to  be 
maintained  not  in  Europe  only,  but  in  all  quarters  of  the 
globe.  Interventions  to  preserve  it  are  on  precisely  the 
same  footing  as  other  interventions  which  cannot  claim  to 
be  carried  out  by  strict  legal  right.  They  may  be  highly 
laudable;  they  may  be  barely  excusable;  or  they  may  be 
deeply  reprehensible.  The  circumstances  of  each  case  must 
be  considered  before  judgment  can  be  given,  the  principle 
remaining  the  same  for  all  cases.  Conduct  so  unsocial  as  to 
endanger  society  may  be  restrained  in  the  interests  of  society.1 
But  it  is  not  lightly  to  be  assumed  that  a  great  advance  in 
the  power  and  wealth  of  a  state  will  be  used  to  endanger  the 
common  weal.  Something  more  than  the  mere  existence  of 
increased  resources  is  necessary  in  order  to  justify  complaint. 
As  things  stand  at  present,  every  state  of  first-rate  impor- 

1  For  a  valuable  discussion  of  the  whole  question,  see  Dupuis,  Le  Principe 
d'Equilibre,  part  I,  ch.  VI. 


134  BIGHTS   AND   OBLIGATIONS 

tance  in  accumulating  the  means  of  defence  is  also  accu- 
mulating the  means  of  aggression.  Hysterical  denunciation 
of  one  another's  armaments  ill  becomes  powers  who  are 
daily  adding  to  their  own  armies  and  navies.  One  may 
hope  that  in  process  of  time  the  decay  of  mutual  suspicion 
and  the  growth  of  acceptable  means  of  settling  international 
disputes  without  resort  to  war,  may  stay  these  equivocal 
preparations,  and  check  the  growing  expenditure  which  is 
daily  pressing  more  heavily  on  the  springs  of  industry  and 
eating  up  the  resources  available  for  social  amelioration. 
Meanwhile,  it  is  wise  to  remember  that  the  power  to  do  evil 
is  harmless  unless  it  is  accompanied  by  the  will  to  do  evil. 
When  this  last  is  shown  by  unmistakable  signs,  then,  but 
not  before,  does  a  case  for  intervention  arise. 

§68 

There  are   two   grounds   of   intervention   that  will  not 

bear  investigation,  though  they  have  been  put  forward  on 

several  occasions.     It  has  been  maintained  that 

Inadmissible 

grounds  of  the  request  of  one  of  the  parties  to  a  civil  war 

intervention.  .         ._  .    ,  ,  .  ,       .  . 

justifies  a  neighboring  power  in  rendering  it 
assistance,  as  Russia  at  the  request  of  the  Austrian  govern- 
ment helped  it  to  crush  its  Hungarian  insurgents  in  1849. 
Some  publicists  deny  the  legality  of  intervention  at  the 
request  of  rebels,  but  are  disposed  to  look  more  favorably 
on  intervention  at  the  request  of  established  governments.1 
Others  hold  that  foreign  powers  may  assist  the  party  that 
appears  to  them  to  have  justice  on  its  side.2  Neither  view 
can  be  regarded  as  sound.  Any  intervention  in  an  internal 
struggle  is  an  attempt  to  prevent  the  people  of  a  state  from 
settling  their  own  affairs  in  their  own  way.  It  might  con- 
ceivably be  justified  on  grounds  of  humanity  or  by  some  of 
the  other  considerations  that  we  have  already  examined;  but 
if  all  that  can  be  said  in  its  favor  is  that  it  was  entered  upon 

1  E.g.  Woolsey,  International  Law,  §42. 

2  E.g.  Vattel,  Droit  des  Gens,  bk.  II,  §  66. 


CONNECTED   WITH   INDEPENDENCE  135 

by  request,  the  case  for  it  breaks  down  completely.  It  is  an 
attack  on  independence  without  adequate  cause,  and  conse- 
quently a  gross  violation  of  International  Law.  In  no  case 
can  an  incitement  to  do  wrong  render  the  act  done  in  con- 
sequence of  it  lawful  and  right.  The  same  reasoning  applies 
to  interventions  for  the  purpose  of  putting  down  revolu- 
tion. When  in  1820-1823  the  Holy  Alliance  was  crushing 
by  means  of  Austrian  troops  movements  in  favor  of  political 
liberty  in  Naples,  Piedmont,  and  other  states,  and  inciting 
France  to  invade  Spain  in  order  to  restore  Ferdinand  VII 
to  the  plenitude  of  his  absolute  power,  Great  Britain,  by  the 
pen  of  Canning  "  disclaimed  any  general  right  of  interference 
in  the  internal  concerns  of  independent  nations."  l  Undoubt- 
edly the  brilliant  minister  enunciated  a  true  doctrine.  No 
such  right  exists.  The  assumption  of  it  by  the  monarchs  of 
the  Holy  Alliance  was  an  offence  against  that  principle  of 
international  solidarity  which  they  professed  to  hold  so  dear. 
A  successful  revolution  in  favor  of  a  republic  is  doubtless 
unwelcome  to  monarchical  states,  and  a  successful  revolution 
in  favor  of  a  monarchy  is  equally  unwelcome  to  republican 
states.  But  all  alike  must  allow  their  neighbors  to  make 
such  changes  in  their  governments  and  institutions  as  seem 
best  to  them,  and  to  make  them  by  force  as  well  as  by  consti- 
tutional means.  Any  real  dangers  to  other  states  which  may 
arise  in  the  process  can  be  dealt  with  under  one  or  more 
of  the  recognized  grounds  of  intervention. 

§69 

Hitherto,  for  the  sake  of  clearness,  we  have  treated  each 
separate  case  as  if  it  came  entirely  and  exclu- 

. x  ...  Various  con- 

sively  under  one  of  the  various  heads  into  which  elusions  concem- 

i  J..JJ.,  ,.  -r*..-  iin&  intervention. 

we  have  divided  interventions.     But  in  actual 

life   matters   are   not   so   simple.     The    same   intervention 

^ertslet,  Map  of  Europe  by  Treaty,  vol.  I,  p.  318;  Wheaton,  History 
of  the  Law  of  Nations,  part  IV,  §§  22,  23  ;  Canning,  Despatch  to  the  French 
Charge  cT  Affaires  of  Jan.  10, 1823. 


136  BIGHTS   AND   OBLIGATIONS 

often  possesses  a  variety  of  aspects,  and  attempts  are  made 
to  justify  it  on  several  grounds.  The  formation  of  a  judg- 
ment upon  it  is  difficult  in  proportion  to  its  complication. 
Few  international  proceedings  of  recent  years  have  been 
more  bitterly  attacked  and  more  strongly  defended  than 
the  British  intervention  in  Egypt,  which  began  in  1882. 
It  involved  for  Great  Britain  questions  of  safeguarding 
vital  interests  in  connection  with  the  Suez  Canal  and  the 
route  to  India,  questions  of  national  honor  with  regard  to 
the  promises  made  to  Tewfik  Pasha  in  1879,  questions  of 
good  government  with  regard  to  the  suppression  of  the 
Arabist  movement  and  the  reform  of  the  administration, 
questions  of  finance  with  regard  to  the  Egyptian  debt,  and 
questions  of  the  rights  of  other  states  in  connection  with  the 
dual  control  which  was  shared  with  France,  and  the  suspen- 
sion of  the  Law  of  Liquidation  which  was  signed  by  no  less 
than  fourteen  powers.1  It  will  not  be  necessary  to  enter 
into  the  controversies  which  this  intervention  aroused.  We 
have  referred  to  it  in  order  to  show  how  complicated  such  a 
proceeding  can  be,  and  how  at  every  turn  it  involves  dis- 
putes on  matters  of  fact  as  well  as  legal  principles.  More- 
over, several  states  may  be  concerned  in  one  and  the  same 
intervention,  and  they  may  be  actuated  by  different  motives 
and  put  forth  different  justifications.  Every  case  must  be 
judged  in  the  light  of  the  principles  we  have  already  laid 
down.  We  may  add  to  them  a  few  others,  which  will  be 
found  useful  guides  to  correct  conclusions.  From  what  has 
been  already  said  it  follows,  as  a  corollary,  that  interven- 
tions in  the  internal  affairs  of  states  are  greater  infringe- 
ments of  their  independence  than  interferences  with  their 
external  action,  which  must,  from  the  nature  of  the  case, 
be  concerned  with  other  powers.  Such  interventions,  there- 
fore, should  be  watched  with  the  utmost  jealousy,  and  require 
the  strongest  reasons  in  order  to  justify  them.  Further, 
interventions  carried  on  by  the  Great  Powers  as  the  repre- 
1  Holland,  European  Concert  in  the  Eastern  Question,  pp.  9S-205. 


CONNECTED  WITH  INDEPENDENCE         137 

sentatives  of  civilization,  or  by  the  Great  Powers  of  Europe 
as  the  accepted  leaders  of  the  states  of  Europe,  are  more 
likely  to  be  just  and  beneficial  than  interventions  carried  on 
by  one  power  only.  But  history  seems  to  show  that  when 
two  or  three  states  combine  in  a  temporary  alliance  for  the 
purpose  of  regulating  the  affairs  of  some  neighbor,  they  not 
only  possess  none  of  the  moral  authority  attaching  to  the 
proceedings  of  the  Great  Powers,  but  are  exceedingly  likely 
to  quarrel  among  themselves.  The  joint  intervention  of 
France  and  England  in  Egypt  is  a  case  in  point.  It  may  be 
held  to  have  begun  in  1878,  and  it  ceased  in  1882  by  the 
withdrawal  of  France  when  it  was  deemed  necessary  to  put 
down  the  Arabist  rebellion  by  armed  force.  It  is  not  too 
much  to  say  that  from  that  date  till  1904,  when  the 
Declaration  concerning  Egypt  and  Morocco  put  an  end 
to  the  friction  between  the  two  powers,  the  policy  of  France 
was  directed  towards  making  the  British  position  in  Egypt 
as  uncomfortable  as  possible.  The  intervention  of  the  Ger- 
man Confederation  in  the  Schleswig-Holstein  question  in 
1864  is  a  more  conspicuous  warning  still  ;  for  it  ended  in 
the  war  of  1866  between  Austria  and  Prussia,  the  two  chief 
intervening  powers. 

§70 

So  prone  are  powerful  states  to  interfere  in  the  affairs  of 
others,  and  so  great  are  the  evils  of  interference,  that  a  doc- 
trine of  absolute  non-intervention  has  been  put  The  doctrine  of 
forth  as  a  protest  against  incessant  meddling,  non-intervention. 
If  this  doctrine  means  that  a  state  should  do  nothing  but 
mind  its  own  concerns  and  never  take  an  interest  in  the 
affairs  of  other  states,  it  is  fatal  to  the  idea  of  a  family  of 
nations.  If,  on  the  other  hand,  it  means  that  a  state  should 
take  an  interest  in  international  affairs,  and  express  approval 
or  disapproval  of  the  conduct  of  its  neighbors,  but  never 
go  beyond  moral  suasion  in  its  interference,  it  is  foolish. 


138  EIGHTS   AND   OBLIGATIONS 

To  scatter  abroad  protests  and  reproaches,  and  yet  to  let  it 
be  understood  that  they  will  never  be  backed  by  force  of 
arms,  is  the  surest  way  to  get  them  treated  with  angry 
contempt.  Neither  selfish  isolation  nor  undignified  remon- 
strance is  the  proper  attitude  for  honorable  and  self-respect- 
ing states.  They  should  intervene  very  sparingly,  and  only 
on  the  clearest  grounds  of  justice  and  necessity  ;  but  when 
they  do  intervene,  they  should  make  it  clear  to  all  concerned 
that  their  voice  must  be  attended  to  and  their  wishes  carried 
out. 


CHAPTER  II 

RIGHTS   AND  OBLIGATIONS   CONNECTED   WITH  PROPERTY 

§71 

INTERNATIONAL  LAW  regards  states  as  political  units 
possessed  of  proprietary  rights  over  definite  portions  of  the 
earth's  surface.1  So  entirely  is  its  conception  states  are  political 
of  a  state  bound  up  with  the  notion  of  territo-  hoidhfg  both6  ° 


rial  possession  that  it  would  be  impossible  for  ^ritoriai  pos-n°n" 
a  nomadic  tribe,  even  if  highly  organized  and  sessions. 
civilized,  to  come  under  its  provisions.  The  whole  law  of 
jurisdiction,  much  of  the  law  of  diplomacy,  and  many  of 
the  rules  that  govern  war  and  neutrality,  imply  that  the 
communities  subject  to  them  have  sovereign  rights  over 
territory.  These  rights  are  quite  compatible  with  the  pri- 
vate ownership  of  land  and  indeed  secure  for  it  the  protec- 
tion without  which  it  could  not  exist.  But  a  state  may  hold 
non-territorial  as  well  as  territorial  possessions ;  and  it  will 
be  well  to  deal  with  them  at  once,  in  order  that  we  may 
dismiss  them  from  further  consideration,  and  go  on  to  con- 
sider the  important  questions  connected  with  national  owner- 
ship of  land  and  water.  The  non-territorial  possessions  of 
a  state  are  its  buildings  and  chattels.  Every  civilized  and 
independent  political  community  possesses  in  greater  or  less 
abundance  such  things  as  palaces,  museums,  ships,  forts, 
arsenals,  arms,  ammunition,  pictures,  and  jewels.  They  be- 
long to  it  in  its  corporate  capacity ;  and  most  questions 
which  arise  with  regard  to  the  right  of  ownership  over 

1  An  able  statement  of  the  contrary  view,  that  sovereignty  is  distinct  from 
property,  will  be  found  in  Westlake's  Chapters  on  the  Principles  of  Internet' 
tional  Lawt  chapter  IX. 

139 


140  RIGHTS  AND  OBLIGATIONS 

them,  or  the  right  to  use  and  enjoy  them,  are  settled  by 
municipal  law.  We  refer,  for  instance,  to  the  law  of  the 
land,  and  not  to  International  Law,  when  we  want  to  know 
when  we  may  visit  a  national  art  gallery,  or  what  compulsory 
powers  the  government  has,  to  take  the  land  of  private 
owners  for  the  erection  of  forts  and  magazines  on  it.  It 
is  only  when  war  breaks  out  between  two  states,  and  such 
possessions  as  we  are  considering  become  subject  to  bellig- 
erent capture,  that  International  Law  steps  in  to  settle  the 
nature  and  limits  of  proprietary  rights  over  them.  The 
laws  of  war  decide  the  extent  of  their  liability  to  hostile 
seizure,  and  the  kind  and  degree  of  control  that  can  be  ex- 
ercised over  them  when  seized.  We  shall  examine  these 
questions  when  we  come  to  deal  with  belligerent  rights. 
Meanwhile  we  may  mention  here  that  vessels  belonging  to 
the  state  —  public  vessels  as  they  are  called  to  distinguish 
them  from  ships  that  are  the  property  of  private  individ- 
uals —  need  not  necessarily  be  adapted  for  warlike  purposes. 
If  they  are  owned  by  the  state,  manned  by  individuals  in  its 
service,  and  navigated  under  the  command  of  its  officers, 
they  are  state  property.  Even  if  hired  by  the  state,  they 
are  public  ships  while  the  hiring  lasts,  provided  that  they 
are  entirely  given  up  for  the  time  being  to  the  service  of  the 
government  and  are  under  the  control  of  its  officers.  Some- 
times the  word  of  the  commander  has  been  held  to  be  suffi- 
cient evidence  of  state  ownership. 

§72 

We  will  now  proceed  to  a  consideration  of  the  rules  of 
International  Law  with  respect  to  the  important  group  of 
Extent  of  a  state's  subjects  connected  with  a  state's  territorial  pos- 
territoriai  sessions.  We  will  begin  by  endeavoring:  to  an- 

possessions.  °  J 

swer  the  question,  Of  what  does  a  state's  terri- 
tory consist  ?  It  consists,  first,  of  the  land  and  water  within 
that  portion  of  the  earth's  surface  over  which  the  state  exer- 


CONNECTED  WITH  PROPERTY  141 

cises  rights  of  sovereignty.  All  rivers  and  lakes  that  are 
entirely  within  its  land  boundaries  are  as  much  its  territory 
us  the  soil  they  water.  And  if  a  river  flows  through  several 
states,  each  possesses  in  full  ownership  that  portion  of  the 
course  which  passes  through  its  territory.  But  if  one  state 
holds  the  land  on  one  bank  of  a  river  and  another  state  pos- 
sesses the  opposite  bank,  the  boundary  line  between  them 
is  drawn  down  the  middle  of  the  navigable  channel,  and 
includes  the  islands  on  either  side,  except  when  established 
custom  or  a  treaty  still  in  force  gives  to  one  of  them  the 
whole  stream.  The  same  rule  holds  good  of  frontier  lakes, 
such  as  Lake  Ontario,  the  northern  shore  of  which  is  Cana- 
dian territory  while  its  southern  coast  belongs  to  the  United 
States.  In  all  these  cases  it  will  be  noticed  that  water  is 
held  to  be  appurtenant  to  land,  not  land  to  water.  The  rules 
concerning  them  are  taken  with  scarcely  any  alteration  from 
the  jus  gentium,  and  are  part  of  that  heritage  of  Roman 
Law  with  which  Grotius  and  his  fellow-workers  endowed  the 
international  code.1 

Secondly,  a  state's  territory  includes  the  sea  within  a  three- 
mile  limit  of  its  shores.  Along  a  stretch  of  open  coast  line 
the  dominion  of  the  territorial  power  extends  seaward  to  a 
distance  of  three  miles,  measured  from  low- water  mark.  The 
rule  of  the  marine  league  was  introduced  at  the  beginning  of 
the  last  century  as  a  practical  application  of  the  principle  laid 
down  by  Bynkershoek  2  and  others,  that  a  state's  dominion 
over  the  sea  should  be  limited  to  that  portion  of  it  which  she 
can  control  from  the  land  by  means  of  her  artillery,  this  being 
obviously  all  that  can  be  needed  to  provide  for  her  own 
safety.  Her  sovereign  rights  were  to  extend  quousque  tor- 
menta  exploduntur.  And  as  at  that  time  the  furthest  range 
of  cannon  was  about  three  miles,  the  accepted  maxim,  Ferrce 
dominium  finitur  ubi  finitur  armorum  vis,  seemed  to  dictate 

1  Justinian,  Institutes,  bk.  II,  tit.  i,  22,  and  Digest,  bk.  XLI,  tit.  i,  29 ; 
Moore,  International  Law  Digest,  vol.  I,  pp.  616-621. 

2  De  Dominio  Marts,  ch.  II. 


142  BIGHTS   AND   OBLIGATIONS 

the  marine  league  as  the  appropriate  distance.  Opposing 
views  gradually  died  out,  though  remnants  of  them  survived 
into  the  recent  past,  as  was  shown  by  the  claim  of  Spain  to 
two  marine  leagues  round  the  coast  of  Cuba,  which  was 
stoutly  opposed  by  Great  Britain  and  the  United  States,1 
and  came  to  an  end  when  the  latter  power  deprived  Spain  of 
the  island  in  1898.  There  can  be  no  doubt  now  that,  what- 
ever difficulties  may  still  linger  as  to  bays  and  indentations, 
the  rule  we  have  laid  down  rests  upon  the  solid  basis  of 
general  consent.  It  gives  to  a  maritime  state  reasonable 
security  from  attack,  the  needful  control  over  shipping,  and 
protection  for  the  population  of  its  coast  line  in  the  enjoy- 
ment of  the  means  of  subsistence  that  they  derive  from  their 
proximity  to  the  sea.2  It  has  been  adopted  not  only  in  the 
domestic  legislation  of  maritime  states,  but  also  in  great 
international  documents,  such  as  the  North  Sea  Fisheries 
Convention  of  1882,  which  defined  territorial  waters  as  those 
which  came  within  three  miles,  measured  from  low-water 
mark  along  the  coast  of  each  of  the  signatory  powers.3  A 
few  attempts  have  been  made  in  recent  times  to  extend  the 
limit  in  order  to  keep  pace  with  the  increased  range  of 
modern  artillery.  For  instance,  in  1863  Mr.  Graham,  the 
United  States  consul  at  Cape  Town,  demanded  the  release  of 
the  Federal  merchant  vessel,  the  Sea  Bride,  which  had  been 
captured  by  the  Confederate  cruiser  Alabama  within  four 
miles  of  the  shore,  but  outside  the  three-mile  limit.  He 
based  his  demand  upon  the  doctrine  that  since  the  invention 
of  rifled  cannon  territorial  waters  extended  to  at  least  six 
miles.  The  British  Governor  of  Cape  Colony  declined  to 
interfere,  on  the  ground  that  the  rule  of  the  marine  league 
held  good.4  Mr.  Graham's  action  was  not  seriously  backed 
by  his  Government;  and  it  may  be  taken  for  granted  that, 

1  Wharton,  International  Law  of  the  United  States,  §§  32,  327. 

2  Perels,  Seerecht,  §  24.  «  Hertslet,  Treaties,  vol.  XV,  p.  795. 
«  British  Parliamentary  Papers,  North  America,  United  States  (1864),  vol. 

LXII,  pp.  19-29. 


CONNECTED  WITH  PROPERTY  143 

in  spite  of  tentative  efforts  at  alteration,1  the  rule  of  the  three- 
mile  limit  is  a  valid  part  of  modern  International  Law.  But 
a  tendency  to  reopen  the  question  is  showing  itself,  and  is 
amply  justified  by  the  increase  of  the  range  of  cannon  from 
three  to  fifteen  miles.  The  Institute  of  International  Law  dis- 
cussed the  matter  at  Paris  in  1894.  It  drew  a  sharp  distinction 
between  territorial  waters  and  waters  over  which  a  neutral 
state  should  be  allowed  to  exercise  the  authority  necessary 
to  enforce  its  neutrality.  On  the  ground  that  the  marine 
league  is  insufficient  to  protect  coast  fisheries,  it  suggested  the 
extension  of  the  territorial  zone  to  six  miles ;  and  it  gave  each 
neutral  state  power  to  declare  to  belligerents  the  number  of 
marine  miles  it  deemed  needful  for  the  guarantee  of  its  neu- 
trality, provided  they  did  not  exceed  the  range  of  cannon 
mounted  on  the  shore.  The  maritime  powers  were  recom- 
mended to  meet  in  congress  to  adopt  these  and  other  rules.2 
States  are,  however,  hard  to  move.  The  suggested  congress 
has  never  been  held.  As  late  as  1904  the  British  Government 
declared  in  the  House  of  Commons  that  it  was  not  prepared 
to  recognize  any  extension  of  the  three-mile  limit,  and  early 
in  1911  it  protested  against  a  Russian  attempt  to  extend  the 
limit  to  twelve  miles  to  protect  the  Archangel  fisheries.3 

In  the  third  place,  a  state  is  held  to  possess,  in  addition  to 
the  marine  league,  narrow  bays  and  estuaries  that  indent  its 
coast,  and  narrow  straits  both  of  whose  shores  are  in  its  terri- 
tory. The  case  of  such  straits  is  ruled  by  a  simple  deduction 
from  the  principles  already  laid  down.  If  the  passage  is  less 
than  six  miles  across,  it  is  wholly  territorial  water,  because  a 
marine  league  measured  from  either  shore  covers  the  whole 
expanse.  If  it  is  more  than  six  miles  across,  a  league  on 
either  side  belongs  to  the  territorial  power  and  the  mid- 
channel  is  part  of  the  open  sea,  which  belongs  to  no  state  but 

1  Bluntschli,  Droit  International  Codifie,  §302;  Phillimore,  Commentaries 
upon  International  Law,  part  III,  ch.  viii. 

3  Annuaire  de  VInstitut  de  Droit  International,  1894-1895,  pp.  281-331. 
8  London  Times  of  June  3,  1904,  and  February  25,  1911. 


144  RIGHTS   AND   OBLIGATIONS 

is  common  to  all  for  use  and  passage.  Usage,  however, 
sometimes  modifies  this  rule.  For  instance,  the  Straits  of 
Fuca,  between  Vancouver  Island  and  the  territory  of  the 
United  States,  are  divided  throughout  into  British  and 
American  waters,  though  they  vary  in  width  from  ten  to 
twenty  miles.  With  regard  to  bays  and  estuaries  there  is 
more  doubt.  The  principle  that  such  of  them  as  are  narrow 
should  belong  to  the  state  that  possesses  the  adjacent  land, 
is  universally  admitted.  For  its  own  protection  against 
possible  enemies  it  is  entitled  to  exercise  the  powers  of 
ownership  over  what  are  really  gates  leading  into  its 
dominions.  But  when  we  come  to  define  the  exact  extent 
of  the  waters  that  may  properly  be  appropriated  in  pur- 
suance of  this  principle,  we  find  no  general  agreement.  If 
the  distance  from  point  to  point  across  the  mouth  of  a  bay 
is  not  more  than  six  miles,  that  bay  becomes  territorial  water 
under  the  accepted  rule  of  the  marine  league.  There  is, 
however,  a  disposition  to  hold  that  the  distance  should  be  ex- 
tended; but  at  present  the  common  consent  of  nations  has 
not  fixed  upon  a  generally  accepted  limit,  though  there  is 
a  considerable  amount  of  authority  in  favor  of  ten  miles. 
This  was  the  rule  adopted  in  the  Fishery  Convention  of  1839 
between  Great  Britain  and  France  ; 1  but  the  Institute  of 
International  Law  at  the  Paris  meeting  to  which  we  have 
already  referred  voted  by  a  large  majority  in  favor  of  raising 
the  limit  to  twelve  miles.  The  mixed  commission  appointed 
under  the  provisions  of  the  Convention  of  1853  between  the 
United  States  and  Great  Britain  for  the  purpose  of  settling 
claims  made  by  the  citizens  of  each  nation  upon  the  govern- 
ment of  the  other,  dealt  with  fishery  disputes,  and  decided 
against  the  claim  of  Great  Britain  that  the  Bay  of  Fundy 
was  British  territorial  water,  on  the  ground,  among  others, 
that  the  distance  from  headland  to  headland  across  its  open- 
ing was  greater  than  ten  miles.2  In  1888  a  Fishery  Treaty 

1  Hertslet,  Treaties,  vol.  V,  p.  89. 

2  Wheaton,  International  Law  (Dana's  ed.),  note  142;  Moore,  Interna- 
tional Law  Digest,  vol.  I,  pp.  785-787. 


CONNECTED  WITH  PROPERTY  145 

was  negotiated  at  Washington  between  the  two  powers,  but 
failed  to  come  into  operation  on  account  of  the  refusal  of  the 
Senate  of  the  United  States  to  ratify  it.  It  is,  however, 
important  for  our  present  purpose,  because  it  adopted  the 
ten-mile  line  in  the  case  of  bays,  creeks  and  harbors  not 
otherwise  specially  provided  for  by  its  articles.1  But  it 
cannot  be  said  that  there  is  a  definite  rule  of  International 
Law  on  this  matter,  as  there  is  in  the  case  of  the  marine 
league.  The  claims  of  states  to  large  tracts  of  marginal 
waters — claims  which  are  themselves  relics  of  yet  wider 
claims  to  dominion  over  oceans  and  seas — increase  the 
difficulty  of  the  question.  Some  of  them  are  dead  or  dor- 
mant; but  when  a  valuable  fishery  is  retained  for  native 
fishermen  by  the  assertion  of  sovereignty  over  a  bay  of  con- 
siderable size,  or  when  considerations  of  self-protection  or 
political  advantage  are  prominent,  we  find  that  states  insist 
upon  and  often  obtain  recognition  of  their  demands,  some  of 
which  are  based  upon  very  ancient  precedent.  Thus  the 
Dutch  claim  to  regard  the  Zuyder  Zee  as  territorial  water  is 
generally  recognized,  and  some  writers  hold  that  the  United 
States  possesses  in  full  ownership  Chesapeake  and  Delaware 
bays.2  Great  Britain  has  almost  forgotten  her  pretensions  to 
sovereignty  over  what  she  called  the  King's  Chambers,  that 
is  to  say,  portions  of  open  sea,  cut  off  by  drawing  imaginary 
lines  from  headland  to  headland  along  her  coast;  but  they 
have  never  been  formally  withdrawn.3  And  by  the  Fishery 
Convention  of  1839  already  alluded  to,  exceptions  were 
allowed  to  the  ten-mile  rule  laid  down  in  it.  The  utmost  we 
can  venture  to  say  is  that  there  is  a  tendency  among  maritime 
states  to  adopt  this  rule,  and  probably  it  will  in  time  become 
the  law  of  the  civilized  world.  It  is,  however,  universally 

1  British  Parliamentary  Papers,  United  States,  No.  1  (1888). 

2  Ortolan,  Diplomatic  de  la  Mer,  vol.  II,  ch.  VIII,  p.  163  ;  C.  F.  de  Mar- 
tens, Precis,  §42;  Kent,  Commentary  on  International  Law  (Abdy's  ed.), 
pp.  113,  114. 

*  Walker,  Science  of  International  Law,  p.  170,  notes  3  and  4, 


146  BIGHTS   AND   OBLIGATIONS 

conceded  that  when  a  bay  or  estuary  is  territorial  water,  the 
marine  league  is  to  be  measured  from  the  imaginary  line 
across  its  entrance. 

In  the  fourth  place,  a  state  possesses  the  islets  fringing  its 
coast.  A  hold  on  them  is  essential  to  its  peace  and  safety. 
The  question  was  raised  in  1805  in  the  case  of  the  Anna,1 
which  was  a  ship  of  somewhat  doubtful  character  captured 
when  flying  the  American  flag  by  a  British  privateer  near  the 
mouth  of  the  Mississippi.  The  seizure  was  made  more  than 
three  miles  from  firm  ground,  but  within  a  league  of  a  chain 
of  mud  islets  which  fringed  the  coast  and  formed  a  "  sort  of 
portico  to  the  mainland."  The  United  States  was  neutral  in 
the  war  between  Great  Britain  and  Spain,  and  its  minister 
in  London  claimed  the  ship  in  the  British  prize  court,  on 
the  ground  that  the  capture  was  made  within  American 
territorial  waters.  The  judgment  of  Lord  Stowell  sustained 
this  contention  and  ordered  the  release  of  the  ship.  He  held 
that  the  islands,  though  not  firm  enough  to  be  habitable, 
must  be  regarded  as  part  of  the  territory,  since  they  were 
formed  by  alluvium  2  from  the  mainland,  and  their  possession 
was  necessary  for  the  command  of  the  river.  "  If  they  do 
not  belong  to  the  United  States  of  America,  any  other  power 
may  occupy  them,  they  might  be  embanked  and  fortified. 
What  a  thorn  would  this  be  in  the  side  of  America  ?  "  There 
can  be  no  doubt  of  the  justice  of  Lord  Sto well's  decision,  and 
the  rule  that  resulted  from  it  has  received  general  recog- 
nition. 

§  73 

We  have  seen  that  states  may  possess  both  land  and  water. 
Can  they  possess  air  also  ?  Is  the  atmosphere  above  them 
is  the  air  above  a  su^jec*  *°  their  sovereignty,  or  is  it,  like  the 
state  a  part  of  its  high  seas,  free  from  the  territorial  jurisdiction  of 

territory?  J 

any  power?     These  questions  have  become  im- 
portant for  practical  purposes,  owing  to  the  great  advances 

1  C.  Robinson,  Admiralty  Reports,  vol.  V,  p.  373. 

2  Justinian,  Institutes,  bk.  II,  tit.  i,  20. 


CONNECTED  WITH  PROPERTY  147 

recently  made  in  the  conquest  of  the  air  by  men.  We  have 
now  dirigible  balloons,  aeroplanes,  man-raising  kites,  and  fly- 
ing machines  of  various  patterns.  It  seems  certain  that  be- 
fore long  the  air  will  be  navigated  in  all  directions,  though 
whether  it  can  be  used  as  a  highway  of  commerce  or  a 
battle-field  for  warring  armadas  is  still  an  unsolved  prob- 
lem. But  the  fact  that  it  can  under  favorable  conditions  be 
traversed  by  machines  which  will  remain  suspended  in  it 
for  several  hours,  is  certain  to  lead  to  its  use  in  time  of 
war  for  discovering  the  enemy's  strength  and  resources. 
Moreover,  bombs  may  be  dropped  from  passing  airships  on 
hostile  fortresses,  magazines,  and  vessels  of  war.  States 
would  do  well  to  agree  on  a  few  simple  regulations  in  an- 
ticipation of  such  possibilities.  Without  stopping  to  dis- 
cuss the  aerial  codes  that  have  been  suggested  by  jurists, 
we  may  remark  that  the  fundamental  principle  on  which  all 
rules  must  be  based  is  not  yet  settled.  Is  a  proprietary  right 
in  the  air  conceded  to  the  states  over  whose  territory  it 
stretches,  or  are  we  to  lay  down  the  doctrine  that  the  air  is 
free  ?  The  antithesis  is  not  so  formidable  as  it  looks.  If  the 
territorial  theory  is  adopted,  a  right  of  innocent  passage  will 
surely  be  given  to  other  states,  and  if  the  freedom  of  the  air 
is  conceded  it  will  be  qualified  by  the  admission  that  a  state 
may  protect  itself  and  its  subjects  from  injurious  use  of  the 
common  element.  The  real  difficulties  of  the  question  will 
arise  when  states  attempt  to  formulate  detailed  rules.  These 
must  be  both  just  and  capable  of  enforcement.  An  Inter- 
national Conference  on  Aerial  Rights  met  in  Paris  in  1910, 
but  adjourned  sine  die  after  producing  a  Draft  Convention, 
which  requires  careful  study  by  governments  before  they 
adopt  its  provisions.1 

§  74 

Having  seen  of  what  a  state's  territory  consists,  we  have 
now   to  discuss  how  it   may  be    acquired.     Various   titles 
are  recognized  as  valid.     They  may  be  divided  into  those 
1  London  Times  of  November  29  and  December  16,  1910. 


148  EIGHTS  AND   OBLIGATIONS 

that  spring  from  original  modes  of  acquisition  and  those 
that  spring  from  derivative  modes  of  acquisition.  The 
Modes  whereby  original  modes  are  those  by  which  states  acquire 
states  can  acquire  territory  that  is  in  technical  phraseology  res 

territory:  J  r  oj 

(i)  occupation.  ntUUuf,  that  is  to  say,  has  not  previously  been 
regarded  as  part  of  the  dominions  of  any  civilized  power. 
The  derivative  modes  are  those  by  which  a  state  acquires 
territory  that  previously  belonged  to  a  civilized  power. 
They  therefore  involve  a  transfer  from  one  acknowledged 
international  person  to  another.  Occupation  and  accretion 
are  the  two  modes  of  original  acquisition.  Cession,  conquest, 
and  prescription  are  the  three  modes  of  derivative  acquisi- 
tion. We  will  describe  these  five  one  by  one,  and  set  forth 
in  order  the  rules  applicable  to  each.  The  first,  and  one  of 
the  most  important,  is  : 

Occupation. 

Title  by  occupation  applies  only  to  territory  not  previously 
held  by  a  civilized  state.  It  was  introduced  into  Inter- 
national Law  during  the  sixteenth  and  seventeenth  centuries, 
when  the  discovery  of  America  had  provided  new  problems  to 
tax  the  ingenuity  of  jurists.  Hitherto  they  had  dealt  with 
countries  where  sovereign  rights  had  been  exercised  from 
time  immemorial.  The  transfer  of  these  countries,  or  parts  of 
them,  from  one  state  to  another  was  all  they  had  to  provide 
for,  and  they  experienced  little  difficulty  in  performing  the 
task.  Now  they  were  suddenly  confronted  with  the  ques- 
tion how  sovereignty  could  be  acquired  over  vast  tracts 
inhabited  only  by  tribes  of  wandering  savages,  or  at  best 
under  governments  that  were  non-Christian  and  uncivilized 
as  Europe  understood  civilization.  At  first  they  seemed  dis- 
posed to  hold  that  mere  discovery  was  sufficient  to  create 
a  good  and  complete  title.  Thus  Spain  claimed  the  whole 
coast  of  America  northward  from  the  Gulf  of  Mexico  on  the 
ground  of  a  possible  discovery  of  Florida  in  1498  by  Amerigo 
Vespucci l  and  a  certain  landing  on  its  shore  by  Ponce  de  Leon 
lFiske,  Discovery  of  America,  vol.  II,  pp.  24-93, 


CONNECTED   WITH   PROPERTY  149 

in  1513.  But  the  English  claimed  the  greater  part  of  the  same 
coast  on  account  of  the  discovery  of  Cape  Breton  or  Newfound- 
land by  John  Cabot  in  1497,  and  the  exploration  of  the  shore, 
from  Nova  Scotia  to  Cape  Hatteras,  by  his  son  Sebastian  in 
1498,  while  a  few  years  afterwards  France  put  in  a  similar 
claim  based  on  the  discovery  of  what  is  now  North  Carolina  in 
1524  by  Verrazano,  a  Florentine  in  the  service  of  the  French 
king.  It  is  hardly  necessary  to  dwell  on  the  famous  Bulls 
of  1493,  by  whichPope  Alexander  VI  attempted  to  divide  the 
lands  of  the  New  World  between  Spain  and  Portugal.1  For 
one  at  least  of  the  grantees  laid  little  stress  on  the  title  thus 
obtained,  and  Protestant  powers  ignored  it  as  a  matter  of 
course.2  Nor  did  they  stand  alone.  The  oft-quoted  reply 
of  Queen  Elizabeth  of  England  to  Mendoza,  the  ambassador 
of  Philip  II,  that  she  did  not  "  acknowledge  the  Spaniards 
to  have  any  title  by  donation  of  the  Bishop  of  Rome,"  may 
be  capped  by  the  mocking  questions  of  Francis  I  of  France 
to  Charles  V  of  Spain.  "  By  what  right  do  you  and  the 
King  of  Portugal  undertake  to  monopolize  the  earth  ?  Has 
Father  Adam  made  you  his  sole  heirs ;  and  if  so,  where  is 
a  copy  of  the  will  ?  " 

The  exaggerated  importance  attached  to  first  discovery 
did  not  long  continue.  The  doctrine  that  it  must  be  fol- 
lowed by  some  formal  act  of  taking  possession,  some  expres- 
sion of  the  will  of  the  state,  as  Vattel  put  it,3  soon  arose. 
This  amounted  to  something  very  much  like  occupation,  by 
which,  as  understood  in  Roman  Law,  a  valid  title  was  obtained 
to  any  res  nullius  by  taking  physical  possession  of  it  with  the 
intention  of  holding  it  as  one's  own.4  In  the  minds  of  the 
classical  jurists  occupation  applied  chiefly,  if  not  entirely,  to 
movables.  It  was  what  they  called  a  natural  mode  of  acqui- 
sition, whereby  proprietary  rights  were  obtained  by  individ- 

1  Cambridge  Modern  History,  vol.  I,  p.  23. 

2  Westlake,  International  Law,  part  I,  pp.  94-96. 
8  Droit  des  Gens,  bk.  I,  §  207. 

4  Digest,  bk.  XLI,  tit.  i,  3  ;   bk.  XLI,  tit.  ii,  3. 


150  BIGHTS   AND   OBLIGATIONS 

uals  over  things  that  had  no  owner.1  The  founders  oi 
modern  International  Law  applied  those  old  Roman  rules 
of  the  jus  naturale  to  the  acquisition  of  sovereign  rights  by 
states  over  newly  discovered  continents.2  Thus  discovery 
was  gradually  deposed  from  the  all-important  position  it  once 
occupied  ;  and  in  modern  times  few,  if  any,  authorities  would 
be  prepared  to  say  that  a  good  title  to  territory  could  be 
based  by  a  state  upon  the  bare  fact  that  its  navigators  were 
the  first  to  find  the  lands  in  question.  But  though  statesmen 
and  publicists  endeavored  to  find  legal  ground  for  national 
claims,  the  controversies  of  the  seventeenth  and  eighteenth 
centuries  between  the  colonizing  nations  of  Europe  as  to 
the  extent  of  their  possessions  on  the  American  continent, 
were  largely  settled  by  the  sword ;  and  where  its  aid  was  not 
invoked  boundaries  were  determined  rather  by  compromise, 
or  the  political  exigencies  of  the  moment,  than  by  Inter- 
national Law.  The  process  of  portioning  out  the  American 
continent  among  civilized  states  was  consummated  in  the 
middle  of  the  nineteenth  century,  when  the  Treaty  of  1846 
divided  the  great  Northwest  between  the  United  States  and 
the  British  Empire.3  From  that  time  onwards  every  foot  of 
ground  in  the  New  World  was  part  of  the  territory  of  some 
civilized  country,  and  no  power  was  free  to  obtain  fresh 
possessions  therein  by  occupation.4  It  seemed,  therefore, 
as  if  the  legal  questions  connected  with  that  method  of 
gaining  an  international  title  to  territory  had  no  more 
than  an  historic  interest.  They  were  superseded  by  new 
and  pressing  controversies,  far  greater  in  immediate  impor- 
tance, and  the  space  given  to  them  in  the  works  of  publi- 
cists grew  less  and  less.  But  the  last  fifty  years  have  seen 
a  great  revival  of  interest  in  them,  owing  to  that  modern 
"  scramble  for  Africa  "  which  has  taken  the  place  of  the  old 
"scramble  for  America."  The  discoveries  of  Livingstone, 

1  Digest,  bk.  XLI,  tit.  i,  1 ;  bk.  XLI,  tit.  ii,  1. 

2  E.g.  Grotius,  De  Jure  Belli  ac  Pacts,  bk.  II,  ch.  HI,  1-4. 
8  Treaties  of  the  United  States,  p.  438. 

*  The  islands  of  the  extreme  north  may  perhaps  be  an  exception. 


CONNECTED  WITH  PROPERTY  151 

Speke,  Grant,  Burton,  Stanley,  and  others  have  shown  that 
the  interior  of  the  Dark  Continent,  instead  of  being  a  desert, 
is  a  vast  and  fertile  territory,  diversified  in  climate,  elevation, 
and  productions,  full  of  great  lakes  and  pierced  by  mighty 
rivers,  the  most  important  of  which  are  navigable  for  thou- 
sands of  miles,  or  can  be  made  so  with  little  trouble  and  ex- 
pense. The  earth-hunger  of  the  Old  World  has  been  aroused. 
The  cupidity  of  some  and  the  benevolence  of  others  have  led 
to  countless  expeditions  of  conquest,  conversion  and  civiliza- 
tion. The  absence  of  anything  like  wars  of  extermination 
waged  against  the  natives,  or  wars  of  conquest  waged  by  the 
colonizing  powers  against  one  another's  settlers,  points,  in  spite 
of  much  that  is  mean  and  sordid  and  cruel,  to  an  improvement 
in  international  morality  during  the  time  that  has  elapsed 
since  a  partition  of  America  was  attempted  by  the  early  dis- 
coverers. Argument  and  compromise  played  but  a  little  part 
in  those  proceedings ;  they  have  bulked  large  in  the  negotia- 
tions of  the  last  few  years  with  regard  to  Africa.  The  prin- 
ciples of  occupation  have  been  restudied  and  applied  anew. 
We  will  endeavor  to  state  as  clearly  as  possible  what  may  be 
deemed  the  modern  doctrine,  warning  our  readers,  however, 
that  in  some  of  its  parts  it  must  be  taken  to  represent  tenden- 
cies towards  law  rather  than  rules  of  universal  acceptance. 

Occupation  as  a  means  of  acquiring  sovereignty  and  do- 
minion applies  only  to  such  territories  as  are  no  part  of  the 
possessions  of  any  civilized  state.  It  is  not  necessary  that 
they  should  be  uninhabited.  Tracts  roamed  over  by  savage 
tribes  have  been  again  and  again  appropriated,  and  even  the 
attainment  by  the  original  inhabitants  of  some  slight  degree 
of  civilization  and  political  coherence  has  not  sufficed  to  bar 
the  acquisition  of  their  territory  by  occupancy.  All  territory 
not  in  the  possession  of  states  who  are  members  of  the  family 
of  nations  and  subjects  of  International  Law  must  be  con- 
sidered as  technically  res  nullius  and  therefore  open  to 
occupation.  The  rights  of  the  natives  are  moral,  not  legal. 
International  morality,  not  International  Law,  demands  that 
they  be  treated  with  consideration. 


152  EIGHTS   AND   OBLIGATIONS 

Occupation  is  not  effected  by  discovery.  The  world  has 
become  so  well  known  that  very  little  land  remains  to  be 
discovered  in  modern  times,  and  there  is  often  great  doubt 
and  dispute  with  regard  to  the  exploits  of  earlier  navigators. 
The  utmost  that  can  be  said  for  discovery  to-day  is  that,  if 
a  navigator  of  one  state  came  home  with  the  news  that  he  had 
found  an  island  or  district  hitherto  unknown,  other  states 
would  be  bound  by  the  comity  of  nations  to  wait  a  reasonable 
time  before  sending  out  expeditions  in  order  to  annex  it. 
We  may  add  that  though  discovery  alone  does  not  give  a  title, 
it  strengthens  a  title  based  on  occupancy. 1  The  best  modern 
practice,  and  the  views  of  the  most  acute  and  thoughtful  pub- 
licists, support  the  doctrine  that  effective  international  occu- 
pation is  made  up  of  two  inseparable  elements  —  annexa- 
tion and  settlement.  By  the  formal  act  of  annexation  the 
annexing  state  notifies  its  intention  of  henceforth  regarding 
the  annexed  territory  as  a  part  of  its  dominions;  and  by  the 
patent  fact  of  settlement  it  takes  actual  physical  possession  of 
the  territory  and  retains  a  hold  upon  it.  The  formalities 
accompanying  annexation  are  not  prescribed  by  International 
Law.  In  modern  times  it  is  usual  to  hoist  the  national  flag 
and  read  a  proclamation  setting  forth  the  intention  of  the 
government  to  take  the  territory  in  question  as  its  own  ; 2 
but  any  ceremony  of  clear  import  done  on  the  spot  in  a  public 
manner  is  sufficient.  It  must,  however,  be  an  undoubted  act 
of  the  central  government  speaking  on  behalf  of  the  state. 
If  the  proper  authorities  have  sent  out  an  official  specially 
charged  with  the  duty  of  making  a  particular  acquisition,  the 
act  of  annexation  performed  by  him  is  in  the  highest  degree 
a  state  act,  and  therefore  valid.  But  subordinate  authorities 
have  no  such  power,  and  their  proceedings  would  be  null 
and  void  unless  they  were  ratified  by  the  supreme  govern- 
ment. 3  Thus  when  in  1883  the  ministry  of  the  British  Colony 

1  Maine,  International  Law,  p.  67. 

2  E.g.  Hertslet,  Treaties,  vol.  XVII,  pp.  670,  671. 
8  Maine,  International  Law,  pp.  66-68. 


CONNECTED  WITS  PROPERTY  153 

of  Queensland  endeavored  to  annex  on  their  own  authority 
the  greater  part  of  the  island  of  New  Guinea,  together  with 
New  Britain,  New  Ireland,  and  a  large  number  of  other  islands 
off  the  north  coast  of  Australia  from  longitude  141°  to  longi- 
tude 155  °,  the  Home  Government  refused  ratification  of  so 
sweeping  an  act.  All  it  would  consent  to  do  was  to  add  to 
the  Empire  a  large  portion  of  the  south-east  of  New  Guinea, 
with  which  were  subsequently  joined  some  groups  of  adjacent 
islands.  The  original  annexation  took  place  in  1884,1  and  at 
the  end  of  that  year  Germany  annexed  another  portion,  and 
established  a  protectorate  over  the  islands  of  New  Britain  and 
New  Ireland,  which  had  been  discovered  in  1699  by  Dampier, 
a  great  British  navigator,  and  nominally  taken  possession  of 
for  Great  Britain  in  1767  by  Captain  Carteret  of  the  Royal 
Navy.  His  act  was, however,  never  ratified,  and  consequently 
it  had  no  validity,  though  he  bore  the  commission  of  King 
George  III.2  A  private  person  cannot  perform  even  an  in- 
choate annexation.  Any  ceremony  he  may  go  through  is  in- 
valid from  the  beginning,  and  incapable  of  ratification.  In 
order  to  annex,  a  state  act  is  necessary,  which  may  be  direct,  as 
when  it  is  done  by  an  officer  commissioned  specially  for  the 
purpose  or  armed  with  a  general  authority  to  annex  under 
certain  circumstances,  or  indirect,  as  when  it  is  performed  by 
subordinate  authorities  on  their  own  initiative,  but  afterwards 
ratified  by  the  central  government. 

Annexation  alone  is  incapable  of  giving  a  good  title.  It  is 
necessary  for  effective  occupation  that  some  hold  on  the 
country  be  taken  and  maintained.  This  is  done  by  settle- 
ment ;  that  is  to  say,  the  actual  establishment  of  a  civilized 
administration  and  civilized  inhabitants  upon  the  territory  in 
question  and  their  continuous  presence  therein.  They  may 
be  established  at  one  spot  or  many.  Their  posts  may  be 
civil,  or  military,  or  a  mixture  of  the  two.  They  may  live 
upon  the  resources  of  the  country  or  upon  supplies  sent  from 

1  Hertslet,  Treaties,  vol.  XVII,  pp.  678,  679. 

2  London  Times  of  Dec.  23,  1884  ;  Annual  Register,  1884,  pp.  432-434. 


154  EIGHTS   AND   OBLIGATIONS 

home.  But  they  must  be  a  permanent  community.  A  tenv 
porary  camp  withdrawn  after  a  time  to  the  mother-country  will 
not  be  sufficient  to  keep  alive  rights  of  sovereignty  over  the 
territory  purporting  to  be  occupied.  There  must  be  a  real 
possession,  as  Vattel  argued  more  than  a  century  and  a  half 
ago.1  Thus  Great  Britain  has  a  settlement  at  Port  Moresby 
in  British  New  Guinea,  and  has  established  there  a  govern- 
ment and  a  central  court,  while  Germany  has  placed  her 
portion  of  New  Guinea  under  an  imperial  commissioner, 
and  has  a  few  little  stations  along  the  coast.2  In  most  cases 
annexation  comes  first  and  settlement  follows,  but  this  order 
is  sometimes  reversed,  as  was  the  case  with  the  British 
colony  of  Natal,  the  principal  seaport  of  which,  Durban,  was 
founded  by  a  little  band  of  British  settlers  in  1824,  nineteen 
years  before  the  district  was  annexed  by  Great  Britain. 
The  mere  fact  of  settlement,  like  the  mere  fact  of  annexation, 
will  not  give  sovereign  rights  while  it  stands  alone.  It  does 
not  matter  which  of  the  two  comes  first,  but  they  must  co- 
exist in  order  to  make  a  valid  occupation.  This  considera- 
tion alone  is  sufficient  to  dispose  of  all  claims  to  sovereignty 
over  the  newly  discovered  North  Pole,  even  if  it  be  granted 
that  the  permanence  of  ice  there  assimilates  the  spot  to  land 
rather  than  to  the  open  ocean,  which  cannot  be  appropriated.3 
Moreover,  it  is  necessary  that  the  hold  upon  the  territory 
should  be  maintained  continuously,  or  at  the  least  that  any 
cessation  of  control  should  be  temporary  and  intermittent. 
A  territory  once  occupied  can  be  abandoned,  as  the  British 
abandoned  the  island  of  Santa  Lucia  in  1640,  after  their 
settlers  had  been  massacred  by  the  Caribs.  And  when  such 
an  abandonment  has  been  shown  by  lapse  of  time,  or  in  any 
other  way,  to  be  definite,  another  state  is  at  liberty  to  treat 
the  territory  as  again  in  the  condition  of  a  res  nullius  and 
occupy  it,  as  the  French  occupied  Santa  Lucia  in  1650.  But 
the  case  of  Delagoa  Bay  seems  to  prove  that  a  temporary 

1  Droit  des  Gens,  I,  §  207 .    2  Statesman's  Tear  Book,  1909,  pp.  322-324, 863. 
8  Article  by  T.  W.  Balch  in  American  Journal  of  International  Law,  vol. 
IV,  pp.  266-275. 


CONNECTED  WITH  PROPERTY  155 

lapse  of  control  over  territory  will  not  be  sufficient  to  invali- 
date a  claim  based  upon  the  exercise  for  centuries  of  more 
or  less  continuous  authority.  The  territory  in  question  was 
claimed  by  England  and  Portugal,  and  the  dispute  between 
them  was  referred  to  the  arbitration  of  Marshal  McMahon, 
then  President  of  the  French  Republic.  His  decision  in  1875 
in  favor  of  Portugal  was  based  upon  the  ground  we  have 
indicated.1 

It  is  admitted  on  all  hands  that  the  rights  of  sovereignty 
gained  by  occupation  extend  beyond  the  territory  inhabited 
and  used  by  the  original  settlers  or  commanded  by  the  guns 
of  their  forts.  All  sorts  of  principles  have  been  laid  down 
according  to  the  exigencies  of  the  moment  as  to  the  extent 
of  territory  acquired  by  an  act  or  series  of  acts  of  annexa- 
tion and  settlement ;  and  the  Roman  Law  from  which  the 
rules  of  occupancy  were  originally  derived  gives  little  help 
toward  the  solution  of  these  difficulties.  But  a  few  principles 
and  precepts,  some  positive  and  some  negative,  may  be 
evolved  from  their  history. 

The  whole  of  an  island,  unless  it  be  very  large,  and  even 
a  group  of  very  small  islands,  may  be  acquired  by  one  act  of 
annexation  and  one  settlement.  Thus,  in  1885,  Great  Bri- 
tain and  Germany  took  possession  of  the  Louisiade  Archi- 
pelago and  the  Marshall  Islands  respectively.  Both  groups 
are  situated  off  the  eastern  end  of  New  Guinea,  and  were 
taken  in  consequence  of  the  acquisitions  made  on  that  island. 
In  each  case  one  formal  act  of  annexation  was  held  to  be 
sufficient  for  the  entire  group.2  The  rules  that  apply  to 
continents  will  apply  to  islands  of  vast  extent  like  Australia, 
which  is  often  called  a  continent.  It  belongs  to  the  empire 
of  Great  Britain,  because  a  large  number  of  British  settle- 
ments fringe  its  coasts  and  run  far  up  into  the  interior,  and 
over  the  whole  of  it  Great  Britain  exercises  actual  or  poten- 

1  Hall,  International  Law,  5th  ed.,  pp.  116-118;  Pitt  Cobbett,  Leading 
Cases  in  International  Law,  pp.  262-263. 

2  Annual  Register,  1884,  PP-  433,  434. 


156  RIGHTS   AND   OBLIGATIONS 

tial  authority.  But  there  can  be  no  doubt  that  if  other 
powers  had  colonized  there  at  the  end  of  the  eighteenth  cen- 
tury, when  England's  sole  settlement  was  at  Botany  Bay, 
they  would  have  been  entitled  to  divide  with  her  the  vast 
territories  that  are  now  hers  exclusively  by  a  perfectly  valid 
title. 

A  state  cannot  acquire  a  whole  continent  by  establishing 
a  few  settlements  upon  one  of  its  coasts  and  going  through 
the  formal  ceremony  of  annexation,  nor  can  the  colonization 
of  one  shore  or  a  part  of  one  shore  of  a  continent  give  a  title 
right  across  it  to  the  opposite  coast.  These  statements  are 
mere  negations ;  but,  nevertheless,  they  enunciate  a  very  im- 
portant principle,  and  one  which  was  not  at  first  recognized 
by  the  colonizing  nations  of  Europe.  Spain  and  France  vied 
with  each  other  in  the  magnitude  of  the  pretensions  they 
based  upon  isolated  acts  of  discovery,  annexation,  and  settle- 
ment, and  some  of  the  charters  given  by  the  kings  of  England 
to  the  early  British  colonists  in  America  expressly  granted 
territorial  rights  across  the  continent  to  the  Pacific  Ocean. 
But  when  these  documents  were  referred  to  by  the  American 
commissioners  at  the  conference  held  in  London  in  1826-1827 
on  the  Oregon  boundary  question,  the  British  negotiators 
declared  that  they  had  no  international  validity  and  could 
give  to  the  grantees  no  more  than  an  exclusive  title  against 
their  fellow-subjects.1  This  was  undoubtedly  a  correct  state- 
ment. Modern  International  Law  lends  no  sanction  to  such 
preposterous  claims. 

Occupation  of  a  considerable  extent  of  coast  gives  a  title 
up  to  the  watershed  of  the  rivers  that  enter  the  sea  along 
the  occupied  line;  but  settlement  at  the  mouth  of  a  river 
does  not  give  a  title  to  all  the  territory  drained  by  that  river. 
Water  is  appurtenant  to  land,  not  land  to  water.  If  a  coast- 
line is  effectively  occupied,  the  rivers  that  fall  into  the  sea 
throughout  its  extent,  and  the  country  drained  by  them,  are 
held  to  belong  in  full  sovereignty  to  the  power  whose  settle- 
1  Twiss,  Law  of  Nations,  vol.  I,  §  126. 


CONNECTED  WITH  PROPERTY  157 

ments  are  dotted  along  the  shore.  This  rule  provides  room 
for  reasonable  extension  inland,  but  gives  no  countenance  to 
the  limitless  pretensions  of  which  we  have  just  spoken.  It 
is  nowhere  better  set  forth  than  in  the  words  of  Messrs. 
Monroe  and  Pinckney,  the  American  negotiators  at  Madrid 
in  the  controversy  of  1803-1805  about  the  boundaries  of 
Louisiana.  They  declared :  "  When  any  European  nation 
takes  possession  of  any  extent  of  sea-coast,  that  possession  is 
understood  as  extending  into  the  interior  country  to  the 
sources  of  the  rivers  emptying  within  that  coast,  to  all  their 
branches  and  the  country  they  cover/'  This  doctrine  they 
described  as  "dictated  by  reason"  arid  "adopted  in  practice 
by  European  nations."  It  is  generally  accepted  as  good  in 
law,  but  with  the  proviso  that  the  extent  of  coast  which  is 
effectively  occupied  must  bear  some  reasonable  proportion  to 
the  extent  of  inland  country  claimed  as  appurtenant  to  it. 
Further,  as  Sir  Travers  Twiss  points  out,1  it  is  inconsistent 
with  the  claim  to  the  whole  territory  drained  by  the  Colum- 
bia River,  put  forth  by  Mr.  Gallatin  on  behalf  of  the  United 
States  in  1827,  on  the  ground  of  first  discovery  of  the  mouth 
of  the  river,  and  the  subsequent  erection  of  a  trading-post 
close  to  it.  This  claim  was  never  conceded;  and  when  the 
Treaty  of  1846  closed  the  controversy,  it  gave  to  Great 
Britain  the  upper  waters  of  the  Columbia  River  and  the 
country  through  which  they  flow.2 

In  the  absence  of  natural  features  the  boundary  of  the 
contiguous  settlements  of  two  states  along  the  same  coast 
should  be  drawn  midway  between  the  last  post  on  either 
side.  The  boundary  line  between  the  possessions  of  the 
United  States  and  Spain  on  the  Gulf  of  Mexico  was  finally 
drawn  in  accordance  with  this  principle.3  But  there  can  be 
no  doubt  that  natural  boundaries  would  be  preferred  to  an 
imaginary  line  in  cases  where  they  exist.  If  a  navigable  river 

1  Law  of  Nations,  vol.  I,  §§  125,  126. 

2  Treaties  of  the  United  States,  p.  436. 

8  Ibid.,  p.  1017;  Hall,  International  Law,  5th  ed.,  p.  108. 


158  BIGHTS   AND   OBLIGATIONS 

falls  into  the  sea  between  settlements  made  by  one  nation 
and  settlements  made  by  another,  each  would  be  deemed  to 
have  occupied  up  to  the  bank  on  its  side  of  the  river,  and  the 
boundary  line  between  them  would  be  drawn  down  the  middle 
of  the  channel. 

The  rules  just  enunciated  close  the  door  to  many  disputes, 
but  all  of  them  are  not  so  precise  in  their  terms  as  to  be  in- 
capable of  diverse  interpretations  when  applied  to  concrete 
cases.  Moreover,  it  is  conceivable  that  a  state  might  contest 
the  applicability  of  some  of  them  to  Africa,  since  they  are 
derived  chiefly  from  American  experience,  and  the  two  con- 
tinents are  not  alike  either  in  geographical  features  or  in 
political  circumstances.  Considerations  such  as  these  have 
prompted  the  great  European  states  who  have  engaged  in 
the  recent  competition  for  territory  and  influence  in  Africa 
to  enter  into  agreements  among  themselves  with  a  view  to 
avoiding  future  conflicts.  These  have  taken  the  form  of 
treaties  for  the  delimitation  of  what  are  called  spheres  of 
influence.1  The  contracting  parties  are  free  to  acquire 
territory  by  occupation  and  perform  any  act  of  sovereignty 
without  interference  from  the  others  within  the  districts 
mutually  assigned  to  them.  Thus  each  of  the  great  colo- 
nizing nations  has  obtained  a  free  hand  over  very  wide 
tracts  of  country,  and  the  possibility  of  such  struggles  be- 
tween them  as  took  place  on  the  American  continent  is 
reduced  to  a  minimum.  It  is  not,  of  course,  altogether  de- 
stroyed ;  for  the  powers  who  are  not  parties  to  the  agree- 
ments in  question,  and  do  not  accord  recognition  to  them, 
are  in  no  way  bound  by  their  provisions,  and  retain  the 
right  under  the  common  law  of  nations  to  occupy  any  terri- 
tory that  is  technically  res  nullius.  But  the  danger  of 
future  collision  is  very  small,  since  every  state  anxious  to 
participate  in  the  division  of  Africa  is  already  supplied  with 
more  territory  than  it  can  reduce  into  possession  for  a  large 
number  of  years. 

i  See  §  81. 


CONNECTED  WITH  PROPERTY  159 

But  the  most  important  and  far-reaching  of  modern  devel- 
opments is  to  be  found  in  the  tendency  to  demand  that  an 
occupying  power  shall  officially  make  known  the  limits  of 
the  territory  it  claims  to  have  added  to  its  dominions  by 
each  fresh  act  of  occupation,  and  shall  within  those  limits 
exercise  authority  sufficient  to  secure  the  primary  conditions 
of  civilized  existence.  These  requirements  were  embodied 
by  the  Institute  of  International  Law  in  the  Declaration  it 
adopted  at  its  meeting  at  Lausanne  in  1888  j1  and  they  are 
substantially  contained  in  the  Final  Act  of  the  West  Afri- 
can Conference  of  1885,  which  was  signed  by  all  the  powers 
of  Europe  and  also  by  the  United  States.  Each  of  the  sig- 
natory powers  bound  itself  to  send  a  formal  notification  to 
the  others  whenever  for  the  future  it  acquired  by  occupation 
a  tract  of  land  on  the  coast  of  Africa  or  assumed  a  protec- 
torate there  ;  and  it  was  understood  that  the  notifications 
would  state  the  limits  of  the  newly  claimed  territory. 
These  rules  have  been  already  acted  on  in  several  instances, 
and  it  may  be  hoped  that  all  states  will  adopt  them,  and 
extend  them  to  any  future  acquisitions  of  unoccupied  lands, 
wherever  they  may  be  situated.  The  powers  represented 
at  the  West  African  Conference  agreed,  further,  that  the 
appropriating  state  must  keep  reasonable  order  throughout 
the  territory  occupied  by  it  on  the  coasts  of  the  African 
continent,  so  as  to  ensure  freedom  of  trade  and  transit,  and 
protect  existing  rights.2  This  provision,  too,  could  with 
great  advantage  be  turned  into  a  general  rule  of  Interna- 
tional Law.  States  are  showing  a  disposition  to  demand 
something  of  the  kind  in  all  cases;  and  though  it  is  clear 
that  thoroughly  effective  control  must  be  a  work  of  time, 
constant  progress  towards  it  may  well  be  demanded. 

It  is  impossible  to  study  the  history  of  recent  territorial 
acquisitions  in  Africa  and  elsewhere  without  being  struck 

1  Tableau  General  de  rinstitut  de  Droit-International,  p.  145. 

2  British  State  Papers,  Africa,  No.  4  (1885),  p.  312 ;  Supplement  to  the 
American  Journal  of  International  Law,  vol.  Ill,  p.  24. 


1(JO  RIGHTS   AND   OBLIGATIONS 

by  the  simultaneous  presence  of  two  things  which  at  first 
sight  appear  incompatible.  We  find,  on  the  one  hand,  in 
treaties  and  diplomatic  documents  little  or  no  reference  to 
the  existence  of  native  inhabitants.  The  countries  they 
live  in  are  partitioned  without  the  slightest  regard  to  their 
wishes.  They  are  simply  ignored  as  having  no  locus  standi 
in  the  matter.  On  the  other  hand,  we  discover  that  when 
the  states  who,  in  their  mutual  agreements,  pay  no  attention 
to  the  natives  come  to  deal  singly  and  directly  with  new 
territory  that  they  wish  to  acquire,  they  are  careful  to 
enter  into  friendly  relations  with  the  inhabitants,  and  as  a 
rule  do  not  take  over  the  country  of  a  tribe  without  some 
agreement  with  it.  For  instance,  between  1884  and  1886 
about  three  hundred  treaties  were  concluded  with  native 
states  and  tribes  in  respect  of  the  British  territories  in  the 
basin  of  the  river  Niger.1  This  seeming  inconsistency  is 
explained  when  we  reflect  that  International  Law,  as  a 
technical  system  of  rules  for  determining  the  actions  of 
states  in  their  mutual  relations,  is  concerned  with  civilized 
communities  alone.  Occupation  gives  a  valid  title  under 
it  ;  but  the  title  can  be  valid  only  as  between  the  states 
who  are  subjects  of  the  law.  When  such  states  come  to 
deal  with  native  tribes,  though  the  technical  rules  of  Inter- 
national Law  do  not  apply,  moral  considerations  do.  Jus- 
tice demands  that  the  inhabitants  of  occupied  districts  be 
treated  with  fairness.  The  old  idea  that  non-Christian 
peoples  could  be  lawfully  dispossessed,  and  even  slain,  out- 
raged the  conscience  of  Christendom,  and  has  been  long  ago 
consigned  to  the  limbo  of  forgotten  theories.  The  sophis- 
tries whereby  Vattel2  sought  to  justify  the  acquisition  of 
the  territory  of  nomads,  on  the  ground  that  they  took  up 
more  land  than  they  had  occasion  for  if  they  would  live  in- 
dustrious and  agricultural  lives,  have  but  little  weight  now. 
But  the  sad  history  of  the  Congo  Free  State3  shows  that 

1  Statesman's  Tear  Book,  1894,  P.  1890. 
*Droit  des  Gens,  bk.  I,  §  209.  8  See  §  46. 


CONNECTED  WITH  PROPERTY  161 

civilized  men  are  in  danger  of  repeating  to-day  under  the 
cloak  of  the  development  of  commerce  the  brutalities  that 
were  exercised  in  the  name  of  religion  four  hundred  years 
ago.  "  At  this  moment  a  system  which  involves  many  of 
the  worst  features  of  African  slavery,  or  even  exceeds  it  in 
horror,  is  prevailing  throughout  a  territory  of  nearly  one 
million  square  miles.  .  .  .  Men,  and  even  women,  are  forced 
into  a  life  of  endless  and  unpaid  toil,  to  which  death  alone 
brings  release.  Inhuman  punishments  prevail.  Disease  and 
famine,  following  naturally  in  the  wake  of  tyranny  and 
violence,  are  sweeping  whole  districts  bare  of  inhabitants." 
These  are  the  words  of  sober-minded  and  responsible  men. 
They  are  taken  from  an  appeal  issued  in  July,  1909,  by  the 
leaders  of  religious  life  and  thought  in  England,  including 
the  two  archbishops  of  the  English  Church  and  leading  Non- 
conformist divines.  The  powers  who  recognized  the  Congo 
Free  State  and  signed  the  Final  Act  of  the  West  African 
Conference  of  1885  have  undoubtedly  a  treaty  right  to 
interfere,  as  well  as  a  duty  of  humanity.  But  it  may  be 
confidently  hoped  that  the  good  sense  and  honorable  feel- 
ings of  the  Belgian  people  will  cause  them  to  carry  out 
completely  and  without  unnecessary  delay  the  reforms  they 
have  begun  in  their  newly  acquired  possession.  The  only 
moral  justification  for  extending  civilized  rule  over  back- 
ward tribes  is  that  they  may  be  raised  thereby  to  a  higher 
plane  of  existence.  When  representatives  of  superior  and 
inferior  races  come  into  contact,  the  former  must  prevail, 
for  the  latter  are  unable,  as  Professor  Westlake  has  pointed 
out,  "to  supply  a  government  adequate  to  the  white  men's 
needs  or  to  their  own  protection."1  But  they  should  never 
exercise  their  authority  by  acts  of  oppression,  or  cruelty, 
or  bad  faith.  The  advantage  of  their  subjects  should  be 
their  object  rather  than  their  own  enrichment,  and  their 
ultimate  aim  should  be  so  to  educate  their  wards  that  they 
may  in  time  learn  to  govern  themselves. 

1  International  Law,  part  I,  p.  105, 


162  BIGHTS  AND  OBLIGATIONS 

§75 

We  now  pass  on  to  consider 

Accretion, 

which  is  the  second  of  the  two  original  modes  of  acquisition 
known  to  International  Law.  It  applies  only  to  water- 
boundaries  ;  and  the  rules  that  define  and  limit  it  are 
Modes  whereby  taken  with  little  variation  from  Roman  Law.1 

tTm^**1111'*  When  the  a6*1011  of  water  Ms  to  the  land'  or 
(2)  Accretion.  when  islands  are  formed  off  the  coast  of  a  state, 

whether  by  alluvium  or  from  any  other  cause,  they  are  re- 
garded as  portions  of  the  territory.  When  a  waterway  is 
the  boundary  between  two  states,  islands  formed  on  either 
side  of  the  middle  of  the  channel  belong  to  the  state  that 
owns  that  side.  If  they  arise  in  the  central  channel  itself, 
they  are  divided  between  the  two  states  by  a  line  drawn 
across  or  along  them  in  continuation  of  the  line  drawn  down 
the  middle  of  the  channel.  But  if  a  convulsion  of  nature 
alters  altogether  the  bed  of  a  boundary  river  or  lake,  the 
line  of  demarcation  does  not  follow  the  new  bed  of  the 
stream,  but  runs  along  the  bottom  of  the  old  deserted  chan- 
nel. There  are  provisions  for  exceptions  to  these  rules  when, 
instead  of  the  river  itself  being  the  boundary,  a  fixed  line  is 
drawn  which  happens  to  touch  the  river  and  run  along  it ; 
but  the  whole  subject  is  so  far  removed  from  the  practical 
everyday  life  of  states,  and  cases  in  point  are  so  seldom  likely 
to  occur,  that  it  does  not  seem  desirable  to  occupy  space  by 
pursuing  the  matter  into  further  detail. 

§76 

Among  the  modes  of  acquisition  which  deal  with  the  trans- 
fer of  dominions  already  held  by  civilized  states,  the  most 
important  is 

Cession, 

by  which  we  understand  the  formal  handing  over  by  agree- 
ment of  territorial  possessions  from  one  international  person 

1  Justinian,  Institutes,  bk.  II,  tit.  i,  20-24  ;  Digest,  bk.  XLI,  tit  i,  7, 29,  65. 


CONNECTED  WITH  PROPERTY  163 

to  another.  The  agreement  is  embodied  in  a  treaty  which 
usually  contains  stipulations  as  to  the  share,  if  any,  of  the 
public  debt  to  be  transferred  along  with  the  Modes  whereby 
ceded  district,  the  rights  of  its  inhabitants  with  ^JJ,^ acqulre 
regard  to  citizenship  and  property,  and  the  (3)  cession, 
obligations  to  be  assumed  by  the  receiving  state.  In  dealing 
with  state  succession  we  have  already  discussed  the  effect  of 
transfer  on  these  matters  in  the  absence  of  special  agreement 
and  have  seen  that  International  Law  is  by  no  means  free 
from  doubt  with  regard  to  them.1  It  is  therefore  highly 
advisable  that  treaty  stipulations  should  be  full  and  explicit. 
Since  cession  is  the  usual  method  whereby  changes  are 
effected  in  the  distribution  of  territory  among  states  that 
are  subjects  of  International  Law,  it  follows  that  cessions 
may  take  place  in  consequence  of  transactions  of  various 
kinds.  Of  these  we  will  consider  first  sale.  It  is  not  very 
frequent;  but  cases  of  it  are  to  be  found  even  in  modern  times, 
as  when  in  1867  the  United  States  purchased  Russian  Amer- 
ica for  f7,200,000.2  The  next  ground  of  cession  is  gift. 
Free  gifts  of  territory  are  not  altogether  unknown,  though 
as  a  rule  the  intercourse  of  states  is  not  conducted  on  prin- 
ciples of  lavish  generosity.  Yet  a  government  that  desired 
for  special  purposes  to  retain  another's  goodwill  has  been 
known  to  make  a  gift  of  territory  by  treaty  of  cession.  Thus  in 
1762  France  ceded  to  Spain  the  colony  of  Louisiana,  in  order  to 
indemnify  her  for  the  loss  of  Florida,  which  had  been  trans- 
ferred to  England  by  the  Treaty  of  Paris  ; 3  and  in  1850 
Great  Britain  ceded  to  the  United  States  a  portion  of  the 
Horse-shoe  Reef  in  Lake  Erie,  in  order  that  the  government 
of  Washington  might  erect  a  lighthouse  thereon.4  But  in 
matters  of  transfer  of  territory  the  gift  is  far  more  often 
forced  than  free.  A  state  beaten  in  a  war  is  sometimes  obliged 

1  See  §  49.  a  Treaties  of  the  United  States,  p.  939. 

3  Wheaton,  History  of  the  Law  of  Xations,  part  II,  §  3  ;  C.  de  Martens, 
Secueil,  vol.  I,  pp.  29-36  ;  Phillimore,  Commentaries,  part  III,  ch.  xiv. 

4  Treaties  of  the  United  States,  p.  444. 


164  RIGHTS  AND   OBLIGATIONS 

to  make  over  a  province  or  a  colony  to  the  victor  as  one  of  the 
conditions  of  peace.  Indeed,  most  cessions  are  the  results 
of  warfare  and  come  under  the  head  of  forced  gifts.  One  of 
the  most  recent  instances  is  to  be  found  in  the  cession  of 
Alsace  and  a  part  of  Lorraine  by  France  to  Germany.  This 
was  done  by  the  Treaty  of  Frankfort  of  1871,1  and  was  one 
of  the  results  of  the  defeat  and  downfall  of  France  in  the 
war  of  that  and  the  preceding  year.  Sometimes,  but  very 
seldom,  sale  and  forced  transfer  are  combined,  as  when  by 
the  Treaty  of  Paris  of  1898  the  United  States  compelled 
vanquished  Spain  to  cede  the  Philippines,  but  agreed  to  pay 
twenty  million  dollars  for  the  islands.2  The  last  ground  of 
cession  we  will  mention  is  exchange.  It  was  common  enough 
in  times  when  territories  were  cut  and  carved  in  order  to 
make  provision  for  the  scions  of  ruling  families,  but  the 
growth  of  the  principle  that  populations  should  have 
a  voice  in  the  settlement  of  their  political  destiny  has  made 
it  comparatively  rare.  We  can,  however,  find  one  instance 
in  recent  European  history.  By  the  Treaty  of  Berlin  of 
1878  Roumania  ceded  to  Russia  that  portion  of  Bessarabia 
given  to  it  at  Russia's  expense  in  the  Treaty  of  Paris  of  1 856, 
and  received  in  exchange  the  Dobroutcha,  which  was  taken 
from  Turkey.3 


§77 

The  next  mode  of  acquisition  involving  transfer  from  one 
sovereignty  to  another  is 

Conquest. 

We  will  begin   the   consideration   of  it   by  distinguishing 
conquest  in  the  legal  sense  from  conquest  in  the  military 

1  Hertslet,  Map  of  Europe  by  Treaty,  vol.  Ill,  p.  1955. 

2  Moore,  International  Law  Digest,  vol.  I,  p.  531. 

8  Holland,  European  Concert  in  the  Eastern  Question,  p.  302. 


CONNECTED    WITH    PROPERTY  165 

sense.  The  latter  takes  place  when  the  agents  of  one  bel- 
ligerent state  completely  subdue  the  agents  of  the  other  in 
a  territory  and  hold  it  by  military  force.  The  Modes  whereby 
former  is  brought  about  when  the  victorious  '££t£n. acquire 
state  exercises  continuously  all  the  powers  of  W  conquest 
sovereignty  over  a  territory  conquered  in  a  military  sense, 
and  signifies  by  some  formal  act,  such  as  a  diplomatic  cir- 
cular, or  a  proclamation  of  annexation,  or  even  by  long  and 
uninterrupted  performance  of  the  functions  of  a  ruler,  its 
intention  of  adding  that  territory  to  its  dominions.  The 
question  of  what  constitutes  a  valid  conquest  in  the  legal 
sense  was  fully  discussed  after  the  downfall  of  Napoleon  in 
connection  with  certain  annexations  of  his  in  Germany  and 
Italy.  The  most  famous  of  these  cases  was  that  of  Hesse 
Cassel;  and  it  seems  to  be  generally  admitted  in  respect  of 
it  that  the  French  Emperor  had  acquired  the  Electorate  by 
conquest  so  as  to  give  international  validity  to  acts  done  in 
the  capacity  of  its  sovereign.  His  troops  had  overrun  it  in 
1806,  and  he  had  acted  as  supreme  ruler  for  some  time,  and 
had  then  added  the  territory  to  the  Kingdom  of  Westphalia, 
which  he  created  for  his  brother  Jerome.  This  new  state 
was  recognized  by  many  powers  and  remained  in  existence  till 
1813.  When,  therefore,  the  restored  Elector  treated  Napo- 
leon's confiscation  of  his  private  property  as  null  and  void,  he 
acted  in  a  violent  and  illegal  manner  since  completed  conquest 
had  put  the  sovereign  power  over  the  Electorate  in  the  hands 
of  the  confiscating  authority.1  Title  by  conquest  differs  from 
title  by  cession  in  that  the  transfer  of  the  territory  is  not 
effected  by  treaty,  and  from  title  by  prescription  in  that  there 
is  a  definite  act  or  series  of  acts  other  than  mere  possession, 
out  of  which  the  title  arises.  These  acts  are  successful 
military  operations  ;  but  if  a  province  conquered  in  a  war  is 
afterwards  made  over  to  the  victorious  power  by  treaty,  it  is 
acquired  by  cession.  Title  by  conquest  arises  only  when  no 

1  Phillimore,  Commentaries,  part  XII,  ch.  vi  ;  Hall,  International  Law, 
5th  ed.,  pp.  666-569. 


166  BIGHTS   AND   OBLIGATIONS 

formal  international  document  transfers  the  territory  to  its 
new  possessor.  When  the  whole  of  a  conquered  state  is  an- 
nexed by  the  victor  there  is  no  international  person  left  with 
whom  he  can  make  a  treaty.  But  when  a  part  only  is  taken, 
the  vanquished  power  instead  of  ceding  it  in  so  many  words 
sometimes  prefers  to  omit  from  the  treaty  of  peace  any  men- 
tion of  the  transfer,  in  which  case  the  principle  of  uti  possi- 
detis  operates,  and  the  territory  is  made  over,  but  by  conquest, 
not  by  cession. 

§  78 

The  last  ground  of  title  we  have  to  consider  is 
Prescription. 

Though  its  existence  in  International  Law  has  been  denied 
by  some  writers,1  the  balance  of  authority  is  overwhelmingly 
Modes  whereby  in  its  favor.  There  can  be  no  doubt  that 
te^ritor^"  *cquire  long-continued  possession  of  territory  gives  a 
(5)  Prescription,  good  title  to  it  when  no  other  ground  can  be 
clearly  shown,  and  even  in  cases  where  possession  was 
originally  acquired  by  illegal  and  wrongful  acts.  The  same 
reasons  which  justify,  and  even  compel,  the  recognition  of 
prescription  as  a  source  of  title  to  private  property  by  the 
municipal  law  of  all  civilized  peoples,  support  its  admission 
into  International  Law.  It  is  as  necessary  to  put  a  limit 
to  disputes  about  national  ownership  as  it  is  to  close  legal 
controversies  between  individuals.  The  only  distinction 
between  the  two  cases  arises  from  the  absence  of  a  common 
superior  over  states.  There  being  no  central  authority  to 
make  and  enforce  rules,  the  length  of  time  requisite  to  give 
a  title  by  prescription  cannot  be  exactly  defined,  as  it  is  in 
municipal  law.  But  nevertheless  the  principle  is  undoubted, 
and  a  power  that  should  refuse  to  recognize  it  would  soon 
be  put  under  ban  as  a  wanton  disturber  of  the  general  peace. 

1  E.g.  G.  F.  de  Martens,  Precis,  §§  70-71. 


CONNECTED  WITH  PROPERTY  167 

We  must,  however,  remember  that  the  title  arises  only  when 
no  valid  ground  of  proprietary  right  can  be  alleged  except 
long-continued  possession. 

§79 

We  now  pass  on  to  describe  the  different  degrees  of  power 
exercised  by  states  over  territory  that  is  to  a  greater  or  less 
extent  under  their  authority  or  subject  to  their  . 

J  A  state  may  exer- 

influence.      It  is  necessary   to  deal  with  this  cise  power  over 

,  .  .  .  £    territory  as  (1)  A 

matter  because  in  quite  recent  times  some  of  partofns 
the  leading  maritime  colonizing  states  have  be-  domuuons- 
gun  to  reserve  for  themselves  territories  over  which  they  do 
not  for  the  present  exercise  full  rights  of  sovereignty;  and 
in  consequence,  questions  have  arisen  as  to  the  exact  nature 
and  limits  of  the  powers  possessed  by  them  over  such  terri- 
tories. The  desire  to  partition  Africa,  and  the  transactions 
that  have  taken  place  in  order  to  secure  its  peaceful  gratifi- 
cation, have  forced  these  questions  to  the  front,  if  they  have 
not  created  the  problems  that  are  now  awaiting  solution  with 
regard  to  them.  Modern  International  Law  was  familiar 
with  sovereignty,  and  it  knew  of  suzerainty,  though  rather 
as  a  relation  between  governments  than  as  a  power  over 
territory.  The  few  protectorates  of  which  it  was  cognizant 
afforded  little  scope  for  the  development  of  international 
difficulties.  Now,  however,  all  is  changed.  Within  the  last 
few  years  protectorates  have  sprung  up  in  Africa  with  the 
rapidity  of  tropical  vegetation,  and  questions  connected  with 
the  responsibilities  and  mutual  duties  of  the  protecting  powers 
have  sprung  up  with  them.  The  creation  of  spheres  of 
influence  has  gone  on  apace;  but  the  name  and  the  thing 
signified  by  it  are  so  new,  that  it  is  not  yet  possible  to  define 
exactly  its  legal  consequences.  In  fact,  a  new  chapter  is 
being  added  to  International  Law;  and  in  the  remarks  that 
follow  we  can  do  little  more  than  indicate  the  direction  taken 
by  opinion  and  practice  with  regard  to  the  questions  com- 
prised in  it. 


168  EIGHTS   AND  OBLIGATIONS 

There  can,  however,  be  no  doubt  or  difficulty  in  respect  of 
the  territory  over  which  a  state  exercises  authority  as  a  part 
of  its  dominions.  Whether  such  territory  has  been  possessed 
from  time  immemorial  or  acquired  but  yesterday,  whether  it 
is  full  of  evidences  of  the  most  advanced  civilization  or 
covered  by  forest  and  wilderness,  whether  most  its  people 
are  cultivated  and  polite  or  rude  and  barbarous,  the  powers 
exercised  over  it,  and  all  who  dwell  upon  it,  are  those  of  full 
sovereignty.  The  state  that  owns  it  controls  entirely  and 
exclusively  both  its  internal  and  its  external  affairs,  except 
in  those  few  cases  where,  as  we  have  stated  before,1  some  of 
the  powers  of  external  sovereignty  are  temporarily  or  per- 
manently impaired.  Its  rights  and  obligations  are  defined 
by  the  common  law  of  nations,  and  may  be  known  by  those 
who  take  the  trouble  to  enquire. 

§80 

With  regard  to  Protectorates  there  is  more  complexity. 

As  we  have  already  seen,2  the  word  may  describe  relations 

of  dependence  on  the  one  side  and  protection  on 

A  state  may  exer-      . ,  . ,          ,  .  , 

cise  power  over  the  other  between  two  international  persons,  or 
J,eror^torote.(2)  A  an  attitude  of  expectant  ownership  and  present 
reservation  on  the  part  of  a  civilized  state  to- 
wards territories  inhabited  by  population  incapable  of  carry- 
ing on  anything  like  state-existence  as  understood  in  the 
society  of  nations.  Protectorates  of  the  former  kind  are  very 
few  in  number  and  too  unimportant  to  require  further  expla- 
nation.3 Protectorates  of  the  latter  kind  are  numerous.  They 
are  simply  devices  whereby  a  colonizing  state  marks  off  for 
itself  various  districts  which  it  does  not  deem  ripe  for  imme- 
diate occupation,  but  which  it  wishes  to  be  free  to  occupy  in 
the  future.  Meanwhile,  by  agreement,  or  otherwise,  it  exer- 
cises a  certain  amount  of  authority  over  the  native  tribes,  and 
binds  them  not  to  enter  into  political  relations  with  any 

1  See  §§60,  61.  'See  §§39,  43. 

8  Oppenheim,  International  Law,  vol.  I,  p.  139. 


CONNECTED  WITH  PROPERTY  169 

foreign  power,  while  at  the  same  time  it  gives  such  powers 
to  understand  that  they  must  refrain  from  direct  dealings 
with  the  natives.  By  a  not  very  happy  inspiration  the  name 
of  colonial  protectorates 1  has  been  given  both  to  the  districts 
in  respect  of  which  these  arrangements  hold  good,  and  to 
the  arrangements  themselves.  It  does,  however,  serve  for 
purposes  of  distinction.  In  using  it  we  must  bear  in  mind 
that  there  is  no  state  to  be  protected,  —  only  more  or  less 
barbarous  tribes, — and  that  the  district  under  the  protector- 
ate is  not  annexed  to  the  protecting  state,  but  reserved  for 
future  annexation.  In  fact,  a  colonial  protectorate  bears  the 
same  relation  to  sovereignty  that  betrothal  bears  to  marriage. 
Between  the  ordinary  protectorates  which  were  for  a  long 
time  the  only  kind  known  to  International  Law  and  the  so- 
called  colonial  protectorates,  stands  a  third  class,  compara- 
tively modern  in  their  origin  and  somewhat  anomalous  in 
their  nature.  We  refer  to  the  cases  where  a  state  belonging 
to  the  family  of  nations,  and  generally  an  important  member 
thereof,  has  established  what  it  terms  a  protectorate  over  a 
political  community  to  which  it  is  impossible  to  deny  the 
name  of  state,  but  which  is  not  sufficiently  civilized  after  the 
European  fashion  to  be  regarded  as  a  full  member  of  inter- 
national society.  As  examples  we  may  cite  the  British  pro- 
tectorate over  Zanzibar,  which  was  established  in  1890,  and 
the  French  protectorate  over  Annam,  which  dates  from  1886. 
In  both  these  countries  there  is  a  native  ruler  —  a  sultan  in 
Zanzibar  and  a  king  in  Annam.  But  the  sultan's  adminis- 
tration is  controlled  by  a  British  agent  and  consul-general, 
and  the  king's  by  a  French  resident  superior.  In  each  case 
all  foreign  relations  are  in  the  hands  of  the  protecting  power.2 
There  is,  however,  a  state  to  be  protected,  though  it  is  not 
what  has  been  called  a  state  of  International  Law.  Protec- 

1  Nys,  Droit  International,  vol.  I,  p.  365,  and  vol.  II,  pp.  80-98;  Westlake, 
International  Law,  part  I,  pp.  119-127. 

2  Statesman's  Year  Book,  1909,  pp.  185-187,  783-785  ;   Despagnet,  Droit 
International  Public,  p.  130. 


170  RIGHTS  AND  OBLIGATIONS 

torates  of  this  kind  easily  shade  off  into  true  colonial  pro- 
tectorates ;  for  it  is  impossible  to  draw  a  hard  and  fast  line 
between  communities  that  are  sufficiently  civilized  to  enter 
into  rudimentary  political  relations  with  a  great  state,  and 
communities  so  barbarous  as  to  have  no  claim  to  statehood 
of  any  sort.  Nevertheless  the  distinction  is  a  real  one. 
There  is  an  immense  difference  between  states  like  Zanzibar 
and  Annam,  with  governments  organized  on  oriental  lines, 
and  a  tribe  of  half -naked  savages  hunting  game  for  subsist- 
ence over  African  plains.  Their  political  destiny  is,  how- 
ever, the  same.  Protectorates  are  instituted  over  the  first,  as 
well  as  over  the  second,  with  a  view  to  eventual  annexation. 
France,  for  instance,  turned  Madagascar,  which  had  been  a 
French  protectorate  since  1885,  into  a  colony  in  1896,  and 
thus  made  it  a  part  of  the  dominions  of  the  republic.  But 
it  sometimes  happens  that  the  protected  state  improves  in 
organization  and  power,  and  throws  off  the  unwelcome  pro- 
tection. A  case  in  point  occurred  in  1896,  when  Abyssinia, 
which  had  been  held  by  Italy  to  have  become  a  protectorate 
in  1889,  defeated  an  Italian  army,  and  recovered  her  full  in- 
dependence by  the  Treaty  of  Adis  Ababa.1 

Of  the  three  kinds  of  protectorates  we  have  discussed, 
colonial  protectorates  only  present  problems  of  marked  in- 
ternational importance.  The  treaties  on  which  each  instance 
of  the  other  two  is  based  are  generally  sufficiently  explicit 
to  make  clear  the  mutual  rights  and  duties  of  the  parties, 
and  their  express  or  tacit  recognition  by  other  states  gives 
them  international  validity.  But  a  colonial  protectorate  is 
sometimes  assumed  without  the  conclusion  of  anything  in 
the  shape  of  an  agreement ;  and  in  any  case  the  agreements 
which  may  be  entered  into  are  not  treaties  in  the  strict  sense 
of  the  word,  since  one  of  the  parties  is  not  a  state.  Justice 
demands  that  some  sort  of  consent  should  be  obtained  from 
the  tribes  and  chiefs  who  live  in  the  protected  territory.  But 
as  far  as  International  Law  is  concerned  the  powers  exercised 
1  Statesman's  Tear  Book,  1899,  pp.  336,  557. 


CONNECTED  WITH  PROPERTY  171 

by  the  protecting  state  spring,  not  from  agreement,  but  from 
its  own  assumption  of  territorial  rights  which,  though  they 
fall  short  of  complete  sovereignty,  look  in  that  direction. 
We  have,  therefore,  to  inquire  whether  the  common  law  of 
nations  has  associated  any  definite  rights  and  obligations 
with  origination  and  maintenance  of  a  colonial  protectorate. 
And  the  answer  cannot  be  as  clear  and  definite  as  might  be 
wished,  because  the  time  that  has  elapsed  since  this  partic- 
ular kind  of  protectorate  became  common  has  not  been  long 
enough  to  enable  a  new  chapter  of  undoubted  law  to  develop. 
In  what  follows  we  shall  be  indicating  tendencies  rather  than 
laying  down  rules. 

When  a  state  has  assumed  a  colonial  protectorate,  it  would 
be  well  advised  if  it  at  once  gave  diplomatic  notification  of 
the  fact  to  all  the  other  members  of  the  society  of  nations. 
The  obligation  to  do  so  is  confined  to  those  powers  who 
signed  the  Final  Act  of  the  West  African  Conference  of 
1885,  and  even  in  their  case  it  is  limited  to  protectorates  on 
the  coast  of  Africa.  But  the  proceeding  is  so  well  calculated 
to  avoid  difficulties  in  the  future,  by  giving  to  any  power 
which  has  counterclaims  to  urge  the  opportunity  of  putting 
forward  its  objections  before  the  new  order  has  had  time  to 
take  root,  that  the  rule  which  insists  on  it  might  well  be 
made  universal  in  its  application.  The  same  Conference, 
while  binding  its  members  to  keep  reasonable  order  in  any 
territory  they  might  in  future  acquire  by  occupation  on  the 
African  coast,  declined  to  extend  the  obligation  to  protec- 
torates.1 But,  as  Professor  Westlake  well  says,  "A  power 
which  pretends  to  exclude  the  action  of  other  powers  from  a 
region  lying  open  to  white  enterprise  must  itself  supply  the 
civilized  action  necessary  for  the  safeguard  and  regulation  of 
such  enterprise."2  It  is  certain  that  if,  for  instance,  a  Ger- 
man subject  were  injured  and  despoiled  in  Uganda  or  the 
British  East  Africa  Protectorate,  Germany  would  apply  to 

1  British  Parliamentary  Papers,  Africa,  No.  4  (1885),  pp.  215-312. 
a  International  Law,  part  I.,  pp.  124,  125. 


172  EIGHTS   AND   OBLIGATIONS 

Great  Britain  for  redress  ;  and  it  is  equally  certain  that 
Germany  would  grant  redress  to  a  British  subject  who  suffered 
wrong  in  German  East  Africa.  This  obligation  of  keeping 
rudimentary  order  and  affording  reasonable  protection  carries 
with  it  as  a  consequence  the  right  of  exercising  jurisdiction 
over  foreigners  within  the  district,  as  well  as  over  natives 
and  citizens  of  the  protecting  power.  After  some  hesitation 
Great  Britain  has  fallen  into  line  with  France  and  Germany 
in  assuming  such  jurisdiction;  and  it  may  be  presumed  that 
as  long  as  it  is  exercised  with  justice  and  moderation  no 
power  will  object  to  it.1  The  question  may  arise  at  any 
moment  whether  native  inhabitants  of  a  protectorate  are  to 
be  regarded  as  subjects  of  the  protecting  state  if  they  are 
found  in  territory  over  which  another  civilized  state  exer- 
cises rightful  authority.  Hall  declares  that  Germany  would 
undoubtedly  give  an  affirmative  answer,  and  he  expresses  a 
conviction  that  other  states  would  take  the  same  view.2 
There  is  no  reason  for  questioning  the  correctness  of  either 
statement.  We  are  therefore  brought  to  the  conclusion  that 
all  the  inhabitants  of  a  colonial  protectorate  are  subjects  of 
the  protecting  state  for  international  purposes.  Moreover 
it  is  clear  that  if  a  state  were  involved  in  war  its  colonial 
protectorates  would  be  liable  to  attack  from  its  foes,  in  the 
absence  of  any  special  agreement  to  the  contrary,  such  as 
one  of  those  contemplated  by  the  eleventh  article  of  the  Final 
Act  of  the  West  African  Conference,  which  stipulated  that 
the  territories  comprised  in  the  free  trade  zone  created  by 
the  Act  might  be  exempt  by  consent  from  warlike  operations 
when  the  powers  exercising  the  right  of  sovereignty  or  pro- 
tection over  them  were  engaged  in  hostilities.3  These  things 
being  granted,  it  is  difficult  to  see  in  what  respects  a  pro- 
tectorate of  the  kind  we  are  considering  differs  internation- 
ally from  an  ordinary  province  or  colony,  or  what  advantage 

1  Hall,  International  Law,  5th  ed.,  p.  126  and  note  1. 

2  Ibid.,  p.  128  and  note  1. 

8  Supplement  to  the  American  Journal  of  International  Law,  vol.  Ill,  p.  14. 


CONNECTED   WITH  PROPERTY  173 

can  accrue  to  a  state  from  assuming  such  a  protectorate  in- 
stead of  adding  the  country  forthwith  to  its  dominions  by 
effective  occupation.  Protectorates  over  savage  or  seini-bar- 
barous  tribes  are  as  a  rule  but  temporary  resting-places  on 
the  road  to  complete  incorporation.  If  their  position  accord- 
ing to  International  Law  is  what  we  deem  it  to  be,  there  seems 
no  reason  for  halting  at  a  halfway  house  which  is  exactly 
like  the  final  goal.1 

§81 

A  very  limited  amount  of  power  may  be  exercised  by  a 
state  over  territory  which  is  called  a  Sphere  of  Influence. 
The  phrase  was  unknown  till  a  few  years  ago,  A  gtate 
and  even  now  it  does  not  possess  a  clear  and  exercise  power 

.  over  territory  as 

recognized  technical  meaning.  .Nevertheless  (3)  A  sphere  of 
the  facts  it  denotes  are  neither  so  complicated  !l 
nor  so  difficult  to  understand  as  those  we  have  attempted  to 
analyze  in  our  explanation  of  the  meaning  of  a  protectorate. 
Over  territory  included  in  the  sphere  of  influence  of  a  state 
it  does  not  necessarily  exercise  any  direct  control,  whether 
in  external  or  in  internal  affairs ;  but  it  claims  that  other 
states  shall  not  acquire  dominion  or  establish  protectorates 
therein,  whereas  it  is  free  to  do  so  if  it  chooses.  It  is  clear 
that  the  validity  of  such  a  claim  depends  entirely  on  agree- 
ment. International  Law  confers  on  states  a  right  to  ac- 
quire unappropriated  territory  by  occupation  or  set  up  a 
protectorate  therein.  But,  in  order  to  avoid  a  repetition  on 
African  soil  of  the  disputes  and  bloodshed  which  for  three 
centuries  made  terrible  the  division  of  North  America  be- 
tween English,  French,  and  Spanish,  the  great  maritime  and 
colonizing  powers  have  in  recent  times  bargained  with  one 
another  for  the  reservation  of  certain  districts  for  them- 
selves, on  condition  that  they  abstain  in  future  from  any 

1  For  the  whole  subject  see  Hall,  International  Law,  5th  ed.,  pp.  125-129 ; 
Westlake,  International  Law,  part  I,  pp.  119-127  ;  and  Hall,  Foreign  Juris- 
diction of  the  British  Crown,  pp.  204-228. 


174  BIGHTS   AND   OBLIGATIONS 

attempt  to  take  possession  of  districts  similarly  reserved  for 
the  other  party  or  parties  to  the  bargain.     Such  transactions 
have  been  very  numerous  during  the  past  three  decades,  and 
most  of  them,  though  not  quite  all,  refer  to  regions  newly 
opened  up  in  Africa.     Good  examples  are  to  be  found  in  the 
agreements  made  by  Great  Britain  in  1890  with  Germany, 
in  1891  with  Portugal,  in  1894  with  Italy,  and  in  1898  with 
France,  for  the  delimitation  of  their  respective  spheres  of 
influence  in  the  eastern,  central,  and  western  parts  of  the 
African   continent.     These  and  other   similar   transactions 
show  an  advance  in  justice  and  humanity  upon  the  methods 
employed  in  partitioning  out  the  New  World.     But  it  is 
necessary  to  describe  their  limitations  as  well  as  their  ad- 
vantages.    When  Great  Britain  and  Germany  in  1890  cove- 
nanted with  each  other  in  respect  of  enormous  territories  in 
East  Africa  that  "  one  power  will  not  in  the  sphere  of  the 
other  make  acquisitions,  conclude  treaties,  accept  sovereign 
rights  or  protectorates,  nor  hinder  the  extension  of  influence 
of  the  other," 1  each  contracted  itself  out  of  its  common  law 
right  of  occupying  any  unappropriated  and  uncivilized  terri- 
tory it  desired  to  take,  and  received  in  return  the  assurance 
that  within  the  limits  assigned  to  it  the  expansive  activity 
of  the  other  would  not  be  exercised.     Such  an  agreement 
cannot  bind  the  civilized  world,  unless  it  is  recognized  by 
the  other  members  of  the  family  of  nations.     Its  immediate 
legal  effect  is  confined  to  the  powers  that  signed  it.     But 
in  several  cases  diplomatic  recognition  has  been  given,  and 
in  most  of  the  others  the  recognition  of  tacit  acquiescence. 
Doubtless  in  war  a  belligerent  would  strike  at  its  adver- 
sary's spheres  of  influence,  if  opportunity  offered  ;  but  there 
is  little  fear  that  the  African  districts  reserved  to  one  an- 
other in  this  capacity  by  European  powers  will  be  the  cause 
of  war  in  the  immediate  future.     The  claimants  will  find 
enough  to  do  in  gradually  reducing  them  into  effective  pos- 
session.    As  protectorates  are  established  in  them  and  dis- 
1  British  Parliamentary  Papers,  Africa,  No.  6  (1890),  p.  8. 


CONNECTED  WITH  PROPERTY  175 

tricts  annexed  by  occupation,  the  protecting  or  annexing 
power  acquires  territorial  rights  independent  of  the  original 
agreement  as  to  the  area  within  which  it  may  operate  with- 
out hindrance.  But  its  right  to  deal  with  the  rest  of  the 
area  continues  to  rest  on  the  stipulations  by  which  its  sphere 
of  influence  was  marked  out ;  and  we  may  question  whether 
such  a  right  would  be  held  to  last  for  an  indefinite  time,  if 
no  serious  attempt  were  made  to  act  on  it. 

§82 

The  idea  of  applying  to  territorial  transactions  between 
states  the  conception  drawn  from  Roman  Law 1  of  a  separa- 
tion between  proprietorship  and  beneficial  en-  A  state  may  ae- 
joyment  is  not  altogether  new,  though  in  its  ^ICed'™ 
developed  form  we  do  not  find  it  till  we  come  territory. 
to  comparatively  recent  times.  In  the  Middle  Ages  a 
province  was  sometimes  left  in  pledge,  as  when  in  1294 
Edward  I  of  England  allowed  Philip  IV  of  France  to  hold 
Gascony  by  his  garrisons,  pending  a  settlement  of  various 
disputes  between  the  two  monarchs.  Of  a  later  period  it 
was  possible  to  say  in  1894,  "The  idea  of  occupation  by 
mutual  agreement  for  a  fixed  or  uncertain  period  is  by  no 
means  unknown  to  European  International  Law."2  But 
the  grant  by  one  state  to  another  of  a  town  or  district  on 
a  lease  for  years,  or  for  a  life  or  lives,  does  not  come  into 
notice  till  we  examine  the  recent  dealings  of  European 
states  with  the  weak  and  decaying  realms  they  encountered 
in  their  distribution  among  themselves  of  African  territory.3 
For  its  most  conspicuous  examples,  however,  we  must  turn 
to  Asia.  In  January,  1898,  a  treaty  was  negotiated  be- 
tween Germany  and  China  whereby  the  latter  leased  to 
the  former  Kiao-chau  Bay  and  the  adjacent  territory  for 

1  Justinian,  Institutes,  bk.  II,  tit.  iv. 

2 British  Parliamentary  Papers,  Egypt,  No.  2  (1898),  p.16. 

•  Westlake,  International  Law,  part  I,  p.  133. 


176  RIGHTS   AND   OBLIGATIONS 

a  term  of  ninety-nine  years.  A  few  weeks  later  Russia 
obtained  from  China  a  similar  concession.  To  quote  the 
language  of  the  official  communication  sent  to  the  Russian 
press,  "Port  Arthur  and  Ta-lien-wan,  with  the  terri- 
tories adjacent  thereto,  and  the  territorial  waters  depend- 
ent thereon,  have  been  ceded  in  usufruct  to  the  Imperial 
Government  for  a  term  of  twenty-five  years,  which  may  be 
extended  later  by  common  accord." 1  Great  Britain  followed 
by  acquiring  the  port  of  Wei-hai-wei,  on  the  same  terms  and 
for  the  same  period  as  had  been  arranged  for  the  Russian 
occupation  of  Port  Arthur.  In  addition  she  obtained  a  lease 
for  ninety-nine  years  of  a  strip  of  territory  opposite  her  island 
of  Hong  Kong,  in  order  to  provide  effectively  for  the  defence 
of  the  city.  France,  not  to  be  outdone  by  other  powers, 
demanded  and  obtained  a  lease  of  the  Bay  of  Kwang-chau- 
wan  on  the  southern  coast  of  China.  In  1905,  by  the  Treaty 
of  Portsmouth,  which  terminated  the  war  between  Russia 
and  Japan,  the  former  power  agreed  to  "  transfer  and  assign  " 
to  the  latter  the  lease  of  Port  Arthur  and  the  adjacent 
territory.2 

We  must  now  inquire  into  the  precise  legal  effect  of  such 
concessions  as  have  been  enumerated.  In  private  law  both 
lease  and  usufruct  imply  that  the  property  continues  to 
belong  to  the  grantor,  while  the  grantee  has  the  use  and 
beneficial  enjoyment  of  it  for  the  time  and  under  the  condi- 
tions fixed  in  the  grant.  Are  we  then  to  say  that  Port 
Arthur,  Wei-hai-wei,  Kiao-chau,  and  Kwang-chau-wan  are 
still  Chinese  territory,  though  Japan,  Great  Britain,  and  the 
other  po\vers  concerned  exercise  for  a  time  important  rights 
in  them  ?  If  so,  on  what  footing  do  other  states  stand  in 
respect  of  their  treaties  of  commerce  with  China,  or  with 
regard  to  their  belligerent  rights  if  they  should  be  at  war 
with  China  or  with  the  lessee?  As  to  the  latter  point,  the 
experience  of  the  Russo-Japanese  struggle  of  1904-1905  shows 

1  London  Times,  March  30,  1898. 

2  Takahashi,  International  Law  in  the  Russo-Japanese  War,  p.  776. 


CONNECTED   WITH  PKOPEETY  177 

conclusively  that  for  all  purposes  of  war  and  neutrality  leased 
territory  must  be  regarded  as  a  part  of  the  dominion  of  the 
power  that  exercises  full  control  over  it.  In  fact,  the 
attempt  to  separate  property  or  sovereignty  on  the  one  hand 
from  possession  on  the  other,  by  the  use  of  phrases  taken 
from  the  law  of  lease  or  usufruct,  is  in  its  very  nature 
deceptive.  The  terms  in  question  are  mere  diplomatic  de- 
vices for  veiling  in  decent  words  the  hard  fact  of  territorial 
cession.  What  China  really  parted  with  was  sovereignty, 
only  it  was  not  convenient  at  the  time  to  say  so,  and  no 
power  but  Germany  said  it.1  Whether  China  has  much 
chance  of  the  restoration  of  her  sovereignty  at  the  end  of 
the  stipulated  period  is  a  problem  of  the  future  into  which 
it  would  hardly  be  decent  to  pry.  But  probably  the  great 
awakening  of  national  feeling  among  her  people  during  the 
last  few  years  will  warn  European  powers  against  any  fur- 
ther attempts  to  dismember  her  territory. 

Hitherto  we  have  been  considering  leases  granted  by  a 
state  that  possessed  undoubted  sovereignty  over  the  ter- 
ritory disposed  of.  But  in  1894  Great  Britain  leased  to  the 
Congo  Free  State  a  portion  of  the  sphere  of  influence  in 
East  Africa  which  had  been  recognized  as  hers  by  the  agree- 
ments of  1890  and  1891,  negotiated  with  Germany  and  Italy 
respectively.  The  area  dealt  with  by  the  Anglo-Congo  Con- 
vention had  never  been  reduced  into  possession,  and  at  the 
time,  if  it  could  be  said  to  be  ruled  at  all,  it  was  in  the 
power  of  the  Khalifa  and  his  hordes  of  barbarous  dervishes. 
The  western  and  much  the  larger  part  was  leased  for  "  so 
long  as  the  Congo  territories,  as  an  independent  state  or  as 
a  Belgian  colony,  remain  under  the  sovereignty  of  his  Ma- 
jesty (Leopold  II  of  Belgium)  or  his  Majesty's  successors," 
while  the  eastern  portion  was  made  over  only  "  during  the 
reign  of  his  Majesty,"  Leopold  II.  Moreover,  the  signatory 
powers  expressly  declared  that  they  "  did  not  ignore  the  claims 
of  Turkey  and  Egypt  in  the  basin  of  the  Upper  Nile."  As 
1  Westlake,  International  Law,  part  I,  p.  134. 


178  RIGHTS   AND   OBLIGATIONS 

soon  as  the  agreement  became  known,  France  protested 
against  it,  and  three  months  after  it  was  signed,  induced 
King  Leopold  to  set  it  aside  almost  entirely.  In  considera- 
tion of  concessions  elsewhere,  he  promised  to  refrain  from 
occupation  and  the  exercise  of  political  influence  in  the 
greater  part  of  the  leased  sphere,  retaining  only  the  option 
of  dealing  with  the  district  on  the  Nile  of  which  Lado  is  the 
centre,  afterwards  known  as  the  Lado  Enclave.  Then  came 
the  events  of  1898  and  1899  —  the  battle  of  Omdurman,  the 
destruction  of  the  power  of  the  Mahdists,  the  seizure  of 
Fashoda  by  a  small  French  force  under  Major  Marchand 
which  had  penetrated  to  the  Nile  through  the  leased  ter- 
ritory, its  withdrawal  under  pressure  from  Great  Britain, 
the  agreement  between  that  power  and  France  whereby  the 
latter  gave  up  all  claim  to  the  Upper  Nile  Valley,  and  the 
establishment  of  the  condominium  of  England  and  Egypt 
over  the  reconquered  Soudan,  which  included  the  districts 
we  are  discussing.1  Into  the  controversy  with  France  we 
need  not  enter  here.  But  it  is  necessary  to  add  that  on  the 
withdrawal  of  French  influence,  King  Leopold  endeavored 
to  revive  as  against  England  the  lease  he  had  five  years 
before  made  into  a  dead  letter  by  agreement  with  France. 
On  the  other  hand,  Great  Britain  maintained  that  his  con- 
duct had  forfeited  his  privileges  under  the  lease,  except 
as  regards  the  Lado  Enclave,  and  declined  to  surrender  to 
him  the  rights  of  Egypt  which  he  had  joined  in  reserving 
when  the  agreement  of  1894  was  signed.  After  seven  years 
of  negotiations  which  have  never  been  made  public,  a  diffi- 
cult and  sometimes  dangerous  situation  was  terminated  in 
1906  by  a  second  agreement,  whereby  the  lease  was  annulled 
except  as  regards  the  Lado  Enclave,2  which,  therefore,  be- 
came Belgian  territory  when  Belgium  took  over  the  Congo 
Free  State  in  1907  and  reverted  to  Great  Britain  on  the 
death  of  Leopold  II  in  1909. 

1  British  Parliamentary  Papers,  Egypt,  Nos.  2  and  3  (1898). 
3  London  Times,  September  28,  1906. 


CONNECTED  WITH  PROPERTY  179 

Thus  diplomacy  and  death  settled  a  problem  which  law 
had  wrestled  with  in  vain.  We  have  seen  that  a  sphere  of 
influence  is  a  district  reserved  by  a  state  for  future  absorp- 
tion. Is  it  possible  to  lease  what  is  not  possessed  by  the 
lessor,  to  grant  to  another  in  usufruct  that  which  is  not 
owned  by  the  grantor  ?  In  the  case  before  us  this  difficulty 
was  accompanied  by  many  others.  Was  France  bound  to 
respect  boundaries  agreed  to  by  Germany  and  Italy,  merely 
because  she  had  not  protested  against  them  when  first  an- 
nounced? Were  the  rights  of  Egypt  in  the  Soudan  de- 
stroyed by  the  Mahdist  revolt,  or  only  kept  in  abeyance  ?  If 
they  were  still  alive,  could  territories  over  which  they  existed 
be  included  in  the  sphere  of  influence  of  another  state  ?  If 
they  were  dead,  could  fresh  rights  over  distant  provinces  be 
acquired  by  the  victory  of  Omdurman  and  the  capture  of 
Khartum  ?  Was  England  as  lessor  bound  to  guarantee  to 
Leopold  II  as  lessee  tranquil  enjoyment  of  the  leased  terri- 
tory ?  Could  it  not  be  regarded  as  res  nullius,  and  there- 
fore open  to  seizure  by  the  first  comer  ?  We  shall  make 
no  attempt  to  unravel  such  a  tangled  skein.  It  is  sufficient 
to  say  emphatically  that,  with  this  example  before  their  eyes, 
states  are  not  likely  to  repeat  the  experiment  of  leasing  a 
sphere  of  influence. 

§83. 

In  addition  to  the  modes  of  exercising  power  over  territory 
which  we  have  already  examined,  a  number  of  others  exist, 
neither  so  frequently  resorted  to  nor  so  im-  Less  important 
portant,  but  nevertheless  deserving  notice.  A  ™wdeers  ^ercisinfi 
territory  may  be  held  in  condominium  by  two  or  territory. 
more  powers,  as  is  the  case  with  the  Soudan,  which  since 
1899  has  been  so  held  by  Great  Britain  and  Egypt.  By  this 
is  meant,  not  that  there  are  two  sovereigns  over  the  same 
territory, —  a  thing  which  by  the  nature  of  the  case  is  impos- 
sible, —  but  that  the  one  sovereignty  is  vested  in  a  body  made 
up  of  the  governments  of  the  two  powers  that  exercise  the 


180  BIGHTS   AND   OBLIGATIONS 

condominium.  In  the  case  before  us  the  question  might  arise 
whether  a  government  that  is  not  fully  sovereign  in  its  own 
territory  is  capable  of  exercising  jointly  or  severally  the 
powers  of  full  sovereignty  over  another  territory.  But  the 
discussion  would  be  purely  academic,  because  in  practice 
Egypt  is  controlled  by  Great  Britain,  though  according  to 
the  letter  of  state-papers  she  is  under  the  suzerainty  of 
Turkey. 

Again,  it  is  possible  for  a  district  or  province  to  be  in  law 
a  part  of  the  dominions  of  one  power  while  it  is  really  gov- 
erned by  another.  The  island  of  Cyprus  affords  an  example. 
In  1878  the  Sultan  assigned  it  "to  be  occupied  and  admin- 
istered by  England."  Certain  conditions  were  embodied  in 
the  two  diplomatic  instruments  which  dealt  with  the  assign- 
ment.1 Great  Britain  was  to  pay  annually  to  the  Porte  a 
sum  equal  to  the  surplus  of  the  revenue  from  the  island  over 
the  expenditure  on  it,  calculated  according  to  the  average 
for  the  previous  five  years,  and  the  interests  of  the  Mussul- 
man religious  foundations  were  specially  protected.  But, 
with  these  and  a  few  other  slight  limitations,  British  power 
was  undistinguishable  from  that  of  sovereignty.  England 
still  retains  the  island  and  for  practical  purposes  is  its  ruler. 
The  Sultan  does  indeed  possess  a  little  more  than  what  is 
called  in  Roman  Law  nuda  proprietas;  but  the  clothing  is  so 
slight  as  to  serve  no  purpose  but  that  of  international  de- 
cency. Occupation  and  administration  are  apt  to  lead  in 
time  to  the  assumption  of  full  sovereignty,  when  the  power 
that  grants  them  is  weak  and  the  power  that  receives 
the  grant  is  strong  and  desirous  of  expansion.  This  hap- 
pened in  1908  with  regard  to  Bosnia  and  Herzegovina,  which 
Turkey  gave  over  by  the  Treaty  of  Berlin  of  1878  "  to  be 
occupied  and  administered  by  Austria- Hungary."2  The 
Sultan's  rights  of  sovereignty  were  reserved  in  the  nego- 
tiations, especially  by  the  Convention  of  1879  between  Aus- 

1  Holland,  European  Concert  in  the  Eastern  Question,  pp.  364-356. 

2  Ibid.,  p.  292. 


CONNECTED  WITH  PROPERTY  181 

tria-Hungary  and  the  Porte  : l  but  during  the  thirty  years 
of  her  occupation  the  Dual  Monarchy  acted  as  sovereign, 
even  to  the  extent  of  making  treaty  stipulations  with  regard 
to  the  two  provinces.  When,  therefore,  she  suddenly  pro- 
claimed to  the  world  in  the  autumn  of  1908  that  she  had 
added  Bosnia  and  Herzegovina  to  her  dominions,  the  objec- 
tions that  were  freely  expressed  on  all  hands  were  directed 
far  more  against  the  high-handed  methods  employed  in  mak- 
ing the  annexation  than  against  the  transfer  itself.  They 
were  concerned  with  the  obligations  of  treaties,  and  under 
that  head  we  shall  consider  them.2  It  should  be  noted  that 
occupation  in  the  sense  in  which  we  have  just  used  the  term 
differs  greatly  from  occupation  regarded  as  a  source  of  title 
to  territory.  The  former  refers  to  the  mere  physical  posses- 
sion exercised  through  civil  or  military  agents,  or  both,  and 
mav  take  place  with  regard  to  countries  that  have  been  for 

«/  L  O 

centuries  under  the  dominion  of  civilized  states.  The  latter 
signifies  such  possession  plus  the  intention  to  hold  the  terri- 
tory as  one's  own,  and  is  a  means  of  acquiring  full  sover- 
eignty over  districts  that  are  technically  res  nuUius. 

Joint-sovereignty  and  the  divorce  of  sovereignty  from 
administration  are  obviously  temporary  expedients,  and  the 
same  may  be  said  of  another  device  sometimes  used  with 
regard  to  territory  when  it  is  impossible  to  decide  at  the 
time  where  the  sovereignty  over  it  shall  reside.  For  instance, 
in  1906  Great  Britain  and  France,  being  unable  to  settle 
which  of  them  should  possess  the  New  Hebrides  and  unwill- 
ing to  leave  them  to  anarchy,  provided  by  convention  that 
they  should  be  jointly  administered  by  a  mixed  commission. 
There  are  French  and  English  courts,  and  a  mixed  court 
whose  judge  is  a  subject  of  neither  power.3 

Yet  another  mode  of  exercising  power  over  territory  is 
found  in  the  engagements  whereby  a  strong  state  has  some- 
times bound  a  weak  one  not  to  alienate  the  whole  or  a  specified 

1  Holland,  European  Concert  in  the  Eastern  Question,  p.  350. 

2  See  §  134.         3  Statesman's  Year  Buok,  1009.  pp.  041,  818. 


182  RIGHTS  AND   OBLIGATIONS 

part  of  its  dominions  except  to  the  state  that  receives  its 
promise.  Thus  in  1884  France  obtained  from  the  Inter- 
national Association  of  the  Congo,  then  about  to  become 
the  Congo  Free  State,  a  right  of  preference  if  it  should  wish  to 
part  with  its  possessions,1  and  in  1898  China  promised  Great 
Britain  by  a  formal  agreement  not  to  cede,  lease  or  mortgage 
any  part  of  the  valley  of  the  Yangtse-Kiang  river  to  any 
other  state.  About  the  same  time  she  made  similar  arrange- 
ments with  France  2  and  some  other  countries.  The  power 
thus  gained  over  the  territory  that  is  the  subject  of  the  en- 
gagement is  passive  rather  than  active.  It  carries  with  it  no 
present  authority  ;  but  it  contemplates  the  possibility  of  the 
exercise  of  authority  in  the  future,  should  the  state  in  posses- 
sion break  up,  or  be  compelled  to  part  with  the  territory  desig- 
nated in  the  agreement.  At  the  time  when  China  entered 
into  the  stipulations  we  have  referred  to,  she  seemed  to  be  in 
imminent  danger  of  disruption,  and  the  states  with  world- 
ambitions  were  anxious  to  establish  colorable  claims  which 
might  be  useful  when  the  anticipated  struggle  for  the  frag- 
ments of  her  empire  began.  But  since  then  she  has  experi- 
enced a  wonderful  revival  of  strength,  due  to  a  wave  of 
patriotic  feeling  which  has  swept  over  her  populations  and 
made  them  keenly  desirous  of  better  government  at  home  and 
greater  consideration  abroad.  It  would  be  presumptuous  to 
venture  on  any  confident  statement  about  her  future.  But 
this  at  least  may  be  hazarded,  that  the  contingency  contem- 
plated in  the  engagements  we  have  referred  to  is  not  very 
imminent.  They  cannot  be  held  to  have  created  anything 
more  than  "a  questionable  reversionary  right";3  and  it 
seems  exceedingly  probable  that  the  reversion  will  never 
fall  in. 

1  Nys,  Droit  International,  vol.  I,  p.  103.        2  Ibid.,  vol.  II,  p.  103. 
8  Westlake,  International  Law,  part  I,  p.  133. 


CONNECTED  WITH  PBOPERTY  183 

§84 

Great  Britain,  Germany,  and  other  colonizing  powers  have 
adopted  the  policy  of  allowing  chartered  companies  to  under- 
take the  first  development  of  countries  newly  chartered  com. 
brought   under   their   influence,  protection,  or  panics  and 

,         .     .  -.-  .      ,        ,       .  ,  pioneer  work. 

dominion.  Uiten  indeed  the  company  begins 
its  work  before  the  diplomatists  step  in  to  delimit  the  terri- 
tories reserved  for  their  respective  states.  We  have  already 
endeavored  to  fix  the  position  of  these  companies  in  Inter- 
national Law.1  It  will  be  sufficient  to  add  here  that  the 
control  exercised  over  them  by  the  mother-country  can  hardly 
be  very  real  or  very  continuous ;  and  that  in  her  effort  to 
escape  responsibility  by  throwing  it  upon  the  shoulders  of  an 
association,  she  may  often  involve  herself  in  transactions 
more  dubious  in  character  and  more  burdensome  in  execu- 
tion than  would  have  been  possible  had  her  control  been 
direct.  For  instance,  when  in  1889  the  natives  of  the  Ger- 
man sphere  of  influence  in  East  Africa  attacked  the  stations 
of  the  German  East  Africa  Company,  the  Imperial  Govern- 
ment sent  ships  and  men  to  assist  in  putting  down  the  out- 
break.2 It  could  not  look  calmly  on  while  its  subjects  were 
slaughtered  by  the  natives ;  yet,  had  the  administration  of 
the  district  been  in  its  hands,  it  would  probably  have  avoided 
the  high-handed  measures  on  the  part  of  the  company's 
agents  which  were  largely  responsible  for  the  rising.  The 
history  of  the  native  kingdom  of  Uganda,  in  British  East 
Africa,  is  another  case  in  point.  Under  the  regime  of  the 
British  East  Africa  Company  passions,  political  and  religious, 
seem  to  have  been  aroused,  which  it  proved  entirely  unable 
to  restrain.  The  British  Government  was  obliged  to  send 
agents  of  its  own  into  the  country,  and  assume  a  large  con- 
trol over  its  affairs  in  order  to  restore  peace  ;3  and  in  April, 
1894,  it  resolved  to  establish  a  protectorate.  Responsibilities 

1  See  §  42.  2  Annual  Register,  1889,  pp.  301-304. 

8  Ibid.,  1892,  pp.  342-345. 


184  EIGHTS   AND   OBLIGATIONS 

it  did  not  seek,  but  wished  to  avoid,  were  thrust  upon  it. 
Its  hands  were  forced,  and  forced  in  consequence  of  the 
very  device  that  was  to  extend  the  trade  and  influence  of 
England  without  involving  it  in  state  efforts  and  state  obliga- 
tions. It  is  impossible  for  a  government  to  grant  to  associa- 
tions of  its  subjects  powers  that  are  hardly  distinguishable 
from  those  of  sovereignty,  without  sooner  or  later  becoming 
involved  in  their  proceedings,  as  in  1893  the  British  Govern- 
ment became  involved,  much  against  its  will,  in  the  war 
waged  by  the  British  South  Africa  Company  against  the 
Matabele  and  their  chief,  Lobengula.1  A  stronger  case 
occurred  when  in  December,  1895,  a  portion  of  the  forces  of 
the  British  South  Africa  Company  commenced  a  lawless  and 
unauthorized  raid  into  the  territory  of  the  Transvaal  repub- 
lic. This  outrageous  proceeding  involved  the  British  Gov- 
ernment in  a  maze  of  complications,  and  helped  to  bring 
about  the  Boer  War  of  1899-1902.  There  is  doubtless  much 
fascination  in  the  idea  of  opening  up  new  territories  to  the 
commercial  and  political  influence  of  a  country,  and  at  the 
same  time  adding  nothing  to  its  financial  burdens  or  inter- 
national obligations.  But  experience  shows  that  the  glamor 
soon  wears  off,  and  the  state  that  seeks  to  obtain  power 
without  responsibility  obtains  instead  responsibility  without 
power.  In  the  days  when  communication  was  difficult  and 
the  distant  parts  of  the  earth  were  a  very  long  way  off, 
strong  reasons  existed  for  allowing  people  who  were  at  any 
rate  on  the  spot  to  undertake  work  that  the  home  govern- 
ment was  incapable  of  understanding  or  controlling,  and  run 
risks  that  it  would  have  been  the  height  of  unwisdom  for 
the  state  to  assume.  But  now  that  it  is  possible  for  the 
authorities  at  home  to  know  and  direct  what  happens  at  the 
ends  of  the  earth,  such  high  responsibilities  as  those  of  gov- 
erning and  improving  the  backward  races  of  mankind  ought 
not  to  be  assumed  except  by  a  state  that  has  counted  the 
cost,  and  deems  it  right  to  shoulder  the  burden.  The  busi- 
1  Statesman's  Year  Book,  1894>  p.  195. 


CONNECTED  WITH  PKOPEKTY  185 

ness  of  government  should  be  kept  distinct  from  the  business 
of  acquiring  wealth.  When  the  main  object  of  rule  is  the 
payment  of  dividends,  all  other  objects  are  apt  to  be  sacri- 
ficed to  it,  as  the  sad  history  of  the  Congo  conclusively 
shows. 

§85 

We  must  now  turn  our  attention  to  territorial  rights  over 
waters,  and  the  claims  of  states  to  exercise  sovereign  author- 
ity in  connection  therewith.  It  was  impossible  to  deal  with 
these  questions  when  we  were  discussing  the  limits  of  terri- 
torial possession;  and  they  were  reserved  for  consideration 
after  we  had  investigated  the  subject  of  inter-  Rights  over 
national  title.  The  interest  of  some  of  them  is  Z^^S?*™ 
chiefly  historical,  while  others  are  matters  of  im-  over  the  hi&h  8eas- 
portance  in  our  own  day.  We  shall,  however,  be  better  pre- 
pared to  grapple  with  the  latter  if  we  have'  some  knowledge 
of  the  former. 

We  will  take  first  the  subject  of 

Claims  to  sovereignty  over  the  high  seas. 

Originally  the  sea  was  perfectly  free,  though,  as  Sir  Henry 
Maine  justly  says,  it  was  common  to  all  "  only  in  the  sense 
of  being  universally  open  to  depredation. "  l  In  Roman  Law 
it  was  one  of  the  res  communes.2  But  in  the  Middle  Ages 
the  maritime  powers  of  Europe  claimed  to  exercise  territorial 
sovereignty  over  those  portions  of  the  high  seas  which  were 
adjacent  to  their  land  territory  or  otherwise  in  some  degree 
under  their  control.  Thus  Venice  claimed  the  Adriatic, 
Denmark  and  Sweden  declared  that  they  held  the  Baltic  in 
joint  sovereignty,  and  England  asserted  a  claim  to  dominion 
over  the  seas  which  surround  her  shores  from  Stadland  in 
Norway  to  Cape  Finisterre  in  Spain,  and  even  as  far  as  the 
coast  of  America  and  the  unknown  regions  of  the  North.3 
Denmark  put  in  a  counterclaim  to  the  Arctic  seas,  and 

1  International  Law,  p.  76.        2  Justinian,  Institutes,  bk.  II,  tit.  i,  1. 
8  Selden,  Mare  Clausum,  bk.  II,  ch.  i. 


186  EIGHTS  AND   OBLIGATIONS 

especially  to  a  large  zone  round  Iceland  where  there  were 
valuable  fisheries.  These  claims,  monstrous  as  they  seem  to 
us,  were  by  no  means  an  unmixed  evil  in  mediaeval  times, 
when  piracy  was  a  flourishing  trade,  and  pirate  vessels  were 
strong  enough  to  insult  the  coasts  of  civilized  powers  and 
make  captures  in  their  harbors.  The  state  that  claimed 
to  possess  a  sea  was  held  bound  to  "  keep  "  it,  —  that  is,  to 
perform  police  duties  within  it,  —  and  this  obligation  was 
fulfilled  with  more  or  less  completeness  by  England  and 
other  maritime  powers.  Moreover,  the  claim  to  dominion 
was  not  deemed  to  carry  with  it  a  right  to  exclude  the  vessels 
of  other  nations  from  the  waters  in  question.  Tolls  were 
often  levied  to  provide  the  funds  for  putting  down  piracy 
and  keeping  the  peace  of  the  seas,  and  licenses  to  fish  were 
given  to  foreigners  in  consideration,  of  a  money  payment. 
In  fact,  no  serious  grievance  appears  to  have  been  felt  till 
after  the  discovery  of  America.  That  event  gave  a  great 
impetus  to  trade  and  navigation,  and  at  the  same  time  ex- 
cited a  strong  desire  on  the  part  of  the  Spaniards  to  be  the 
sole  possessors  of  the  wealth  of  the  New  World.  Accord- 
ingly, they  not  only  claimed  the  Pacific  Ocean  as  their  own 
by  right  of  discovery,  but  also  strove  to  exclude  from  it  the 
vessels  of  other  powers.  About  the  same  time  Portugal 
adopted  a  similar  policy  with  regard  to  the  Indian  Ocean 
and  the  newly  discovered  route  round  the  Cape  of  Good 
Hope.  The  other  maritime  nations  set  at  naught  these 
preposterous  claims.  French  and  English  explorers  traded, 
fought,  and  colonized  in  America  with  scant  respect  for  the 
so-called  rights  of  Spain ;  and  Holland  sent  her  fleets  to  the 
Spice  Islands  of  the  East  without  troubling  to  ask  leave  and 
license  of  Portugal.  The  rulers  and  jurists  of  these  aggres- 
sive nations  sought  a  theoretical  justification  of  their  acts  in 
the  new  doctrine,  or  rather  the  old  doctrine  revived,  that  the 
sea  was  incapable  of  permanent  appropriation.  Elizabeth  of 
England  told  the  Spanish  ambassador  at  her  Court  that  no 
people  could  acquire  a  title  to  the  ocean,  but  its  use  was 


CONNECTED  WITH  PROPERTY  187 

common  to  all.  Grotius  of  Holland  published  a  learned 
argument  in  favor  of  its  freedom  in  1609.  He  afterwards 
modified  his  views  so  far  as  to  allow  that  gulfs  and  marginal 
waters  might  be  reduced  into  ownership  as  attendant  upon 
the  land ; l  and  in  this  latter  form  the  principle  of  the  free- 
dom of  the  seas  from  territorial  sovereignty  became  one  of 
the  fundamental  doctrines  of  modern  International  Law. 
Selden  in  his  Mare  Clausum,  published  in  1635,  supported 
the  claim  of  England  to  dominion  over  the  northern  seas, 
but  rather  on  the  ground  of  immemorial  prescription  than 
on  general  principles.  Even  then  the  enforcement  of  such 
claims  was  against  the  spirit  of  the  age,  and  they  began  to 
dwindle  from  the  middle  of  the  seventeenth  century.  For 
more  than  a  hundred  years  after  Great  Britain  had  ceased  to 
exercise  any  real  powers  of  sovereignty  over  the  seas  she 
still  called  her  own,  she  claimed  within  their  limits  ceremo- 
nial honors  to  her  flag;  and  till  quite  recent  times  Denmark 
endeavored  to  reserve  a  large  area  round  the  coast  of  Iceland 
for  the  exclusive  use  of  her  fishermen.  But  the  British  de- 
mand for  salutes  and  the  lowering  of  the  flag  has  been  tacitly 
dropped  for  generations,  and  Denmark,  after  various  con- 
cessions, gave  up  the  struggle  in  1872,  and  fell  back  on  the 
three-mile  limit  allowed  by  International  Law.2 


§86 

The  last  attempt  to  enforce  exclusive  claims  over  a  por- 
tion of  the  open  ocean  was  made  by  the  United  States  in  the 
controversy  with  Great  Britain  that  terminated  Eights  over 
in  the   Bering    Sea   arbitration   of    1893.     In  2SJJL2* 
the  year  1821   the   Emperor  Alexander   I    of  to  prohibit  sod- 

•  *  fishing  in  Bering 

Russia  issued  an  ukase,  prohibiting  all  foreign  sea. 

vessels  from  approaching  within  less  than  a  hundred  Italian 

miles  of  the  coasts  and  islands  belonging  to  Russian  America. 

1  De  Jur<  Belli  ac  Pads,  bk.  II,  ch.  iii,  8. 

2  Hall,  International  Law,  5th  ed.,  p.  148,  note  1. 


188  BIGHTS  AND  OBLIGATIONS 

This  proceeding  was  justified  on  the  ground  that  Russia  had 
a  right  to  claim  the  Pacific  north  of  latitude  51°  as  a  mare 
clausum,  on  the  ground  of  first  discovery  and  the  possession 
of  both  its  shores.  Great  Britain  and  the  United  States  at 
once  protested  against  the  ukase  and  the  claims  on  which  it 
was  founded,  the  American  secretary  of  state,  Mr.  John 
Quincy  Adams,  pointing  out  that  the  distance  across  the 
Pacific  from  shore  to  shore  along  the  51st  parallel  of  north 
latitude  was  no  less  than  4000  miles.  He  declared  that  the 
United  States  could  not  admit  the  existence  of  an  "  exclu- 
sive territorial  jurisdiction"  over  these  waters  on  the  part 
of  Russia,  and  that  they  would  "  maintain  the  right  of  their 
citizens  ...  of  free  trade  with  the  original  nations  of  the 
northwest  coast  throughout  its  whole  extent."1  He  claimed 
for  them  freedom  from  molestation  "beyond  the  ordinary 
distance  to  which  the  territorial  jurisdiction  extends."2  The 
Russian  Government  yielded  to  the  remonstrance  of  the  two 
great  commercial  powers,  and  signed  a  Convention  with  the 
United  States  in  1824 3  and  with  Great  Britain  in  the  fol- 
lowing year.4  The  terms  of  these  instruments  were  almost 
identical.  They  conceded  to  citizens  and  subjects  of  both 
powers  the  right  to  navigate  and  fish  without  molestation  in 
the  waters  closed  to  them  by  the  ukase  of  1821,  and  to  resort 
to  places  on  the  coast  where  there  was  no  Russian  settlement 
for  the  purpose  of  trading  with  the  natives.  Some  tempo- 
rary provisions  in  the  American  treaty  with  regard  "to  gulfs, 
harbors,  and  creeks"  were  differently  interpreted  by  the 
two  powers,  and  were  not  renewed;  but  the  main  stipula- 
tions remained  in  force  till  the  United  States  acquired  the 
whole  of  Russian  America  by  purchase  in  1867.  A  rapid 
development  of  the  country  then  began,  and  among  other 
enterprises  the  seal-fisheries  were  taken  in  hand  with  a  view 

1  Treaties  of  the  United  States,  p.  1379. 
2 British  and  Foreign  State  Papers,  vol.  IX,  p.  483. 
8  Treaties  of  the  United  States,  p.  931. 
*Wheaton,  International  Law,  §  170. 


CONNECTED  WITH  PROPERTY  189 

to  their  improvement.  In  1870  a  monopoly  of  the  Pribyloff 
seal-rookeries  was  given  by  the  American  Government  to  the 
Alaska  Commercial  Company,1  on  condition  that  it  paid 
certain  sums  annually  to  the  United  States  Treasury,  and 
killed  no  seals  except  on  the  islands,  and  not  more  than 
100,000  a  year  even  there.  The  sealing  industry  soon  be- 
came exceedingly  lucrative,  and  vessels  from  the  maritime 
provinces  of  the  Dominion  of  Canada  were  attracted  to  it. 
Their  crews,  not  being  bound  by  the  restraints  imposed  by 
the  law  of  the  United  States  upon  American  citizens,  killed 
the  seals  wherever  they  could  find  them  outside  the  ordinary 
limits  of  territorial  waters.  The  American  sealers  complained 
and  protested;  and  in  1886  three  schooners  belonging  to 
Victoria,  British  Columbia,  were  seized  while  fishing  about 
seventy  miles  from  land,  and  taken  before  the  district  court 
of  Sitka  for  trial  on  a  charge  of  infringing  the  law  which 
forbade  the  killing  of  fur-seals  within  the  limits  of  Alaska 
and  its  waters,  except  under  authorization  from  the  secre- 
tary of  the  United  States  Treasury.  The  judge  who  tried 
the  case  laid  down  in  his  charge  to  the  jury  that  the  terri- 
torial waters  of  Alaska  included  the  whole  of  the  vast  area  — 
1500  miles  in  width  and  700  miles  in  depth  —  bounded  by 
the  limits  mentioned  in  the  treaty  of  cession  of  1867  as  those 
"within  which  the  territories  and  dominions  conveyed  are 
contained."2  Thus  directed,  the  jury  found  the  prisoners 
guilty,  and  the  penalties  of  imprisonment  for  themselves  and 
confiscation  for  their  vessels  and  cargoes  were  enforced 
against  them.  Great  Britain  at  once  remonstrated.  The 
seizure  of  other  vessels  elevated  the  difficulty  to  the  rank  of 
a  great  international  controversy,  which  was  carried  on  for 
several  years  and  threatened  more  than  once  to  disturb  the 
peaceful  relations  between  the  two  countries.  Happily,  how- 
ever, it  was  referred  to  the  arbitration  of  a  board  of  seven 

1  Wharton,  International  Law  of  the  United  States,  vol.  II,  p.  272. 

2  Treaties  of  the  United  States,  p.  940  ;    British   Parliamentary   Papers, 
Correspondence  respecting  the  Behring  Sea  Seal-fisheries,  1886-1890,  p.  2. 


190  RIGHTS  AND   OBLIGATIONS 

jurists,  two  being  appointed  by  each  of  the  parties  to  the 
controversy,  one  by  the  President  of  the  French  Republic, 
one  by  the  King  of  Italy,  and  one  by  the  King  of  Sweden 
and  Norway.1  The  award  of  this  tribunal  was  given  at 
Paris,  on  August  the  15th,  1893.  The  arbitrators  found  for 
Great  Britain  on  all  the  points  of  International  Law  in  dis- 
pute.2 They  agreed  that  by  the  treaty  of  1867  Russia  ceded 
to  the  United  States  all  her  rights  within  the  boundaries 
therein  defined;  but  they  held  that  the  jurisdiction  over 
enormous  tracts  of  open  ocean  claimed  by  Alexander  I  in 
1821  was  not  among  those  rights.  International  Law  never 
gave  it  to  Russia,  and  she  could  not  cede  what  she  did  not 
possess.  Accordingly,  the  territorial  rights  of  the  United 
States  in  the  waters  of  Alaska  were  limited  to  its  bays  and 
gulfs,  and  the  marine  league  along  its  shores.  America  had 
no  property  in  the  fur-seals  when  found  outside  those  limits, 
and  no  power  to  protect  them  from  seizure  on  the  high  seas 
by  the  citizens  of  other  countries.  At  the  same  time,  the 
tribunal  recognized  the  force  of  the  American  contention, 
that  it  was  necessary  to  put  the  fishery  under  regulations  in 
order  to  preserve  the  seal-herd  from  grievous  diminution,  if 
not  utter  destruction.  The  treaty  of  reference  gave  the 
arbitrators  power  to  devise  such  regulations,  in  case  they 
declared  Bering  Sea  open  to  the  fishing  vessels  of  all 
nations.  They  exercised  this  power,  and  drew  up  an  elabo- 
rate code,  which  established  a  close  time  for  seals,  forbade 
their  capture  within  sixty  miles  of  the  Pribyloff  Islands, 
decreed  that  only  sailing  vessels  should  engage  in  the 
fishery,  and  laid  down  many  other  rules  which  the  two 
powers  brought  into  effect  by  means  of  domestic  legislation 
in  1894. 

It  can  hardly  be  doubted  that  the  decision  of  the  arbitra- 
tors was  good  in  International  Law.     The  claim  to  exercise 

1  Message  of   President   Harrison   transmitting  Treaty  of  Arbitration, 
February  9,  1892,  to  the  Senate,  March  8,  1892. 

2  London  Times,  August  6,  1893. 


CONNECTED  WITH  PROPERTY  191 

rights  hardly  distinguishable  from  those  of  sovereignty  over 
Bering  Sea  was  contrary  to  principles  that  had  been  asserted 
by  no  power  more  vigorously  than  the  United  States ;  1  and 
it  was  extremely  difficult  to  reconcile  the  action  of  its 
government  toward  the  British  sealers  with  the  attitude 
assumed  by  Mr.  Adams  in  the  controversy  with  Russia  pro- 
voked by  the  ukase  of  1821.2  But  even  if  the  American 
claim  did  not  amount  to  an  assertion  of  full  sovereignty  over 
Bering  Sea,  a  pretension  which  Mr.  Elaine,  President  Harri- 
son's secretary  of  state,  expressly  disavowed,  the  exclusive 
jurisdiction  over  its  waters  and  exclusive  rights  in  the  seal- 
fisheries  which  he  stoutly  maintained,  could  with  difficulty  be 
justified  on  other  than  territorial  grounds.  The  contention 
that  the  seals  were  semi-domestic  animals,  and  as  such  the 
property  of  the  United  States,  will  hardly  bear  investigation. 
They  are  wild  creatures  whom  each  may  catch  on  his  own 
territory  or  in  localities  belonging  to  no  one.  The  United 
States  can  claim  no  rights  over  them  after  they  have  left 
American  waters ;  for  they  are  then  as  much  beyond 
American  authority  as  are  the  big  game  of  the  northwest 
plains  when  they  have  wandered  across  the  border  into  Cana- 
dian territory.  The  assertion  that  the  destruction  of  seals  at 
sea  is  immoral,  was  an  exaggerated  statement  of  the  principle 
that  to  destroy  a  useful  animal  is  detrimental  to  the  welfare 
of  the  human  race.  The  experts  differed  widely  as  to  the 
effect  of  the  sea  fishing  upon  the  numbers  of  the  seals  ;  but 
even  had  the  evidence  in  favor  of  its  disastrous  consequences 
been  stronger  than  it  was,  the  United  States  would  not  have 
been  justified  in  assuming  a  right  to  make  its  own  ideas 
of  proper  regulation  the  law  of  the  civilized  world.  It 
could  legislate  for  its  own  citizens  in  their  own  vessels  on 
the  high  seas,  not  for  the  citizens  of  other  states  lawfully 

1  Wheaton,  International  Law  (Dana's  ed.),  p.  260,  note  108  ;  Wharton, 
International  Law  of  the  United  States,  vol.  I,  p.  105. 

2  Wheaton,  International  Law,  §  168 ;  Wharton,  International  Law  of 
the  United  States,  vol.  II,  pp.  270,  271. 


192  RIGHTS  AND   OBLIGATIONS 

navigating  the  ships  of  those  states.1  But  undoubtedly  it 
had  a  strong  moral  claim  on  foreign  nations  for  a  mutual 
agreement  that  should  prevent  the  extermination  of  the  seals. 
With  this  end  in  view  the  arbitrators  drew  up  regulations, 
which,  however,  failed  to  effect  their  purpose,  largely  owing  to 
the  entrance  into  the  sealing  industry  of  Japanese,  who  were 
not  bound  by  them.  Russia  concluded  an  agreement  on  the 
subject  with  Great  Britain  and  the  United  States ;  but  Japan 
refused  her  adherence.  At  last,  in  June,  1911,  when  the  seal 
herd  was  almost  destroyed,  the  four  powers  directly  concerned 
agreed  on  the  suspension  of  pelagic  sealing  for  fifteen  years. 
Here  we  have  the  beginning  of  "an  International  Game 
Law,"  which  is  undoubtedly  the  true  solution  of  the  diffi- 
cult}r.2  This,  and  the  decisive  assertion  of  the  freedom  of  the 
high  seas,  are  likely  to  be  the  permanent  results  of  the  arbi- 
tration. Any  claim  on  the  part  of  the  United  States  which 
might  militate  against  the  received  doctrine  seems  to  have 
been  definitely  abandoned  in  1902,  when  the  American  agent 
in  an  arbitration  with  Russia  was  authorized  to  declare  that 
"The  government  of  the  United  States  claims,  neither  in 
Bering  Sea  nor  in  its  other  bordering  waters,  an  extent  of 
jurisdiction  greater  than  a  marine  league  from  its  shores.'"3 

§  87 

Claims  to  dominion  over  whole  seas  may  be  said  to  have 
vanished  altogether  from  International  Law.  But  in  the 
Eights  overwaters.  process  of  departure  they  left  behind  them  a 
(3)  claims  to  number  of  assertions  of  territorial  power  over 

jurisdiction  be-  «j          vi 

yond  the  marine     considerable  stretches  of  water  along  the  coasts 

of  maritime  states  ;  and  it  is  doubtful  how  far 

some  of  these  are  alive  to-day.     Great  Britain  has  never  in 

recent  times  attempted  to  exercise  the  rights  of  sovereignty 

1  British  Parliamentary  Papers,  Correspondence  respecting  the  Behring  Sea 
Fisheries,  1886-1890,  pp.398-462  ;  Moore,  International  Law  Digest,  vol.  I, 
pp.  898-913,  and  International  Arbitrations,  ch.  XVII. 

2  Moore,  International  Law  Digest,  vol.  1,  pp.  914-923  ;  London  Times  of 
June  28,  1911.  »  Ibid.,  pp.  828-829. 


CONNECTED  WITH  PROPERTY  193 

over  the  "  King's  Chambers  "  ;  and  though  Chancellor  Kent 
declared  in  favor  of  the  "justice  and  policy  "  of  her  claim  to 
"  supremacy  over  the  narrow  seas  adjacent  to  the  British 
Isles,"  and  referred  with  approval  to  similar  claims  made 
early  in  the  nineteenth  century  by  American  statesmen,  in- 
cluding as  they  did  an  assertion  of  the  right  to  prohibit  naval 
warfare  between  the  Gulf  Stream  and  the  Atlantic  shore,  or 
at  least  within  a  line  drawn  from  headland  to  headland  and 
along  the  open  coast  for  four  leagues  out  to  sea,1  it  is  fairly 
certain  that  no  attempt  would  now  be  made  to  enforce  these 
views.  Indeed,  the  general  policy  of  the  United  States  has 
tended  emphatically  towards  the  curtailment  of  such  claims. 
The  opinion  of  the  civilized  world  sets  strongly  in  this  direc- 
tion ;  and  subject  to  such  extensions  of  territorial  waters  as 
the  needs  of  self-defence  may  in  future  secure,  we  may  con- 
sider the  few  cases  in  which  claims  to  large  bays  and  broad 
waterways  are  still  allowed  as  survivals  of  an  older  order. 

The  British  Hovering  Acts  of  1736  and  1784  assert  a  juris- 
diction for  revenue  purposes  to  a  distance  of  four  leagues 
from  the  shore,  and  there  are  acts  setting  up  a  similar  claim 
for  health  purposes.  In  1797,  1799,  and  1807  the  United 
States  Congress  legislated  to  the  same  effect,  and  many 
maritime  nations  have  embodied  the  like  provisions  in  their 
laws.2  Dana  argues,  however,  that  the  right  to  make  seizures 
beyond  the  three-mile  limit  has  no  existence  in  modern  Inter- 
national Law,  and  maintains  with  regard  to  the  Act  of  Con- 
gress of  1797,  that  it  did  not  authorize  the  seizure  of  a  vessel 
outside  the  marine  league,  but  only  its  seizure  and  punishment 
within  that  limit  for  certain  offences  committed  more  than 
three  miles,  but  less  than  twelve,  from  the  shore.3  It  is  very 
doubtful  whether  the  claim  would  be  sustainable  against  a 
remonstrance  from  another  power,  even  in  this  attenuated 
form.  When  it  is  submitted  to,  the  submission  is  an  act  of 

1  Commentaries  on  International  Law  (Abdy's  ed.),  pp.  113,  114. 

2  Wharton,  International  Law  of  the  United  States,  §  32. 
8  Wheaton,  International  Law  (Dana's  ed.),  p.  258,  note. 


194  RIGHTS  AND   OBLIGATIONS 

courtesy.  As  Twiss  rightly  and  properly  says:  "  It  is  only 
under  the  comity  of  nations  in  matters  of  trade  and  health, 
that  a  state  can  venture  to  enforce  any  portion  of  her  civil 
law  against  foreign  vessels  which  have  not  as  yet  come  within 
the  limits  of  her  maritime  jurisdiction." 1 

§88 

The  next  subjects  that  demand  attention  are  those  con- 
nected with 

The  right  of  innocent  passage. 

This  may  be  defined  as  the  right  of  free  passage  through 
the  territorial  waters  of  friendly  states  when  they  form 
Rights  over  a  channel  of  communication  between  two  por- 

SlTof  innocent      tionS  °f  the  high  S6a*'       Thei>e  Ciin   be  n°  d°ubt 

passage.  that  when  both  the  shores  of  a  strait  that  is 

not  more  than  six  miles  across  are  possessed  by  the  same 
power,  the  whole  of  the  passage  is  regarded  as  territorial 
water;  and  there  are  instances  of  wider  straits  that  are 
deemed  to  be  under  the  power  of  the  local  sovereign.  But 
these  territorial  rights  do  not  extend  to  the  absolute  exclusion 
of  the  vessels  of  other  states  from  the  waters  in  question.  In 
the  days  when  whole  seas  were  claimed  in  full  ownership,  the 
powers  that  owned  narrow  waterways  were  in  the  habit  of 
taking  tolls  from  foreign  vessels  as  they  passed  up  or  down  the 
straits.  The  most  famous  of  these  exactions  were  the  Sound 
Dues  levied  by  Denmark  upon  ships  of  other  powers  which 
sailed  through  the  Sound  or  the  two  Belts,  on  their  passage 
from  the  North  Sea  to  the  Baltic  or  from  the  Baltic  to  the 
North  Sea.  Their  origin  is  lost  in  remote  antiquity.  The 
earliest  treaties  in  which  they  are  mentioned  regard  them  as 
established  facts  and  recognize  the  right  of  Denmark  to  levy 
them.  In  the  Middle  Ages  other  states  negotiated  with  the 
territorial  power  as  to  their  amount,  and  sometimes  made  war 
upon  her  to  reduce  exorbitant  demands;  but  no  one  denied 
1  Law  of  Nations,  vol.  I,  §  190. 


CONNECTED  WITH  PROPERTY  195 

that  a  reasonable  toll  might  lawfully  be  exacted.  But  with 
the  growth  of  modern  commerce  these  demands  became  in- 
creasingly irksome;  and  as  the  old  idea  of  appropriating  the 
ocean  gave  way  to  the  doctrine  that  it  was  free  and  open  to 
all,  it  was  felt  that  the  navigation  of  straits  that  connected 
two  portions  of  the  high  seas  was  an  adjunct  to  the  navigation 
of  the  seas  themselves,  and  should  be  as  free  in  one  case  as  in 
the  other.  Accordingly,  in  1857  Denmark  found  herself  un- 
able any  longer  to  levy  the  Sound  Dues,  though  her  jurists 
were  able  to  show  a  clear  prescription  of  five  hundred  years  in 
her  favor.  By  the  Treaty  of  Copenhagen  she  gave  them  up.1 
A  large  pecuniary  indemnity  was  paid  to  her  by  the  maritime 
powers  of  Europe;  but,  in  order  to  avoid  recognizing  by 
implication  any  right  on  her  part,  the  covenanted  sum  was 
declared  to  be  given  as  compensation  for  the  burden  of  main- 
taining lights  and  buoys  for  the  future.  In  the  same  year 
the  United  States  negotiated  a  separate  Convention  with 
her,  whereby  all  tolls  on  their  vessels  were  abolished, 
and,  in  consideration  of  a  covenant  on  the  part  of  the  King 
of  Denmark  to  light  and  buoy  the  Sound  and  the  two  Belts 
as  before,  and  keep  up  an  establishment  of  Danish  pilots  in 
those  waters,  they  agreed  to  pay  him  the  sum  of  "  three 
hundred  and  ninety-three  thousand  and  eleven  dollars  in 
United  States  currency."2  These  instances  show  that  the 
common  law  of  nations  now  imposes  upon  all  maritime 
powers  the  duty  of  allowing  a  free  passage  through  such  of 
their  territorial  waters  as  are  channels  of  communication  be- 
tween two  portions  of  the  high  seas.  The  right  thus  created 
is,  of  course,  confined  to  vessels  of  states  at  peace  with 
the  territorial  power,  and  is  conditional  upon  the  observance 
of  reasonable  regulations  and  the  performance  of  no  unlawful 
acts.  It  extends  to  vessels  of  war  as  well  as  to  merchant 
vessels.  No  power  can  prevent  their  passage  through  its 
straits  from  sea  to  sea,  even  though  their  errand  is  to  seek 

1  Twiss,  Law  of  Nations,  vol.  I,  §  188. 
8  Treaties  of  the  United  States,  p.  239. 


196  BIGHTS   AND   OBLIGATIONS 

and  attack  the  vessels  of  their  foe,  or  to  blockade  or  bombard 
his  ports.  As  long  as  they  commit  no  hostile  acts  in  terri- 
torial waters,  or  so  near  them  as  to  endanger  the  peace  and 
security  of  those  within  them,  their  passage  is  perfectly 
"innocent."  The  word,  as  used  in  the  phrase  "right  of 
innocent  passage,"  refers  to  the  character  of  the  passage,  not 
to  the  nature  of  the  ship. 

§89 

It  is  sometimes  supposed  that  the  regulations  in  force  for  the 

transit  of  vessels  through  the  Dardanelles  and  the  Bosphorus 

disprove  the  doctrine  we  have  just  laid  down  as 

Eights  over  ^  * 

waters.   (5)  The    to  tlie  extension  of  the  right  of  innocent  passage 

special  case  of  the  .  .  ..  ,-.  ,  .  .       , 

Dardanelles  and  to  ships  of  war.  But  a  short  historical  examma- 
the  Bosphorus.  tion  Q£  the  cage  ^  ghow  ^  it  is  excepti0nal, 

in  that  it  is  governed  by  special  treaty  stipulations  and  not 
by  the  ordinary  rules  of  International  Law.  Till  1774,  when 
Russia  compelled  Turkey  to  open  the  Black  Sea  and  the  straits 
leading  to  it  from  the  Mediterranean  to  merchant  vessels,  it  had 
been  the  practice  of  the  Porte,  which  did  not  consider  itself 
bound  by  the  public  law  of  Europe,  to  forbid  the  passage  of  the 
Dardanelles  and  the  Bosphorus  to  ships  of  other  powers.  After 
1774  ships  of  war  were  still  excluded ;  and  in  1809  Great  Britain 
recognized  this  practice  as  "  the  ancient  rule  of  the  Ottoman 
Empire."  She  was  followed  in  1840  by  Austria,  Russia,  and 
Prussia,  who  were  parties  with  her  to  the  Quadruple  Treaty 
of  London;  and  France  adhered  to  the  arrangement  in  1 841. 1 
The  first  subsidiary  Convention  attached  to  the  Treaty  of  Paris 
of  1856  revised  the  rule  so  as  to  allow  the  passage  of  light 
cruisers  employed  in  the  service  of  the  foreign  embassies  at 
Constantinople,  and  of  a  few  small  vessels  of  war  to  guard  the 
international  works  at  the  mouth  of  the  Danube.  A  further 
modification  was  introduced  by  the  Treaty  of  London  of  1871, 
which  retained  the  previous  rules,  but  reserved  power  to  the 
Sultan  to  open  the  straits  in  time  of  peace  to  the  war  vessels 
1  Holland,  European  Concert  in  the  Eastern  Question,  pp.  95-101. 


CONNECTED   WITH   PROPERTY  197 

of  friendly  powers,  if  he  should  deem  it  necessary  in  order  to 
secure  the  observance  of  the  Treaty  of  Paris  of  1856. 1  These 
last  two  treaties  have  been  signed  by  all  the  Great  Powers, 
and  are  universally  accepted  as  part  of  the  public  law  of 
Europe.  It  is  clear,  therefore,  that  the  rules  they  lay  down 
are  binding;  but  it  is  equally  clear  that  these  rules  rest  on 
treaty  stipulations,  and  not  on  the  common  law  of  nations. 
Russia  attempted  to  evade  their  restrictions  during  her 
war  with  Japan  of  1904-1905  by  sending  ships  of  her  volun- 
teer fleet  from  the  Black  Sea  into  the  Mediterranean  under 
her  commercial  flag,  but  with  fighting  crews  on  board  and 
guns  hidden  in  their  holds,  and  then  turning  the  vessels  into 
warships  when  they  reached  open  waters.  But  under  the 
influence  of  very  strong  representations  from  Great  Britain, 
some  of  whose  merchantmen  had  been  captured  by  the  con- 
verted cruisers,  the  attempt  was  abandoned.2 

We  now  see  that  the  case  of  the  Dardanelles  and  the 
Bosphorus  is  an  exception  to  ordinary  rules,  and  instead  of 
proving  that  the  right  of  innocent  passage  does  not  extend 
to  vessels  of  war,  it  proves  the  exact  contrary  ;  for,  if  the 
principle  of  exclusion  applied  under  International  Law,  there 
would  have  been  no  need  of  a  long  series  of  treaties  in  order 
to  bring  it  into  operation.  It  may  be  added,  that  when  the 
regular  channel  for  navigation  between  two  parts  of  the  high 
seas  runs  through  marginal  waters,  there  is  a  right  of  peaceful 
passage  along  it,  which  may  not  be  denied  or  impeded  by  the 
territorial  power.  The  accepted  modern  principle  is,  that  the 
waterway  between  open  seas  is  an  adjunct  of  the  seas  them- 
selves and  may  be  navigated  as  freely  as  they. 

1  Twiss,  Law  of  Nations,  vol.  I,  §  189;  Holland,  European  Concert  in  the 
Eastern  Question,  pp.  256-257  and  273. 

2  Lawrence,  War  and  Neutrality  in  the  Far  East,  2d  ed.,  pp.  200-218. 


198  RIGHTS   AND   OBLIGATIONS 

§   90 

We  now  pass  on  to  examine 
The  position  in  International  Law  of  interoceanio  ship  canals. 

The  construction  of  the  Suez  Canal  raised  a  new  question. 

Nothing  like  this  great  engineering  work  had  been  known 

since  the  modern  law  of  nations  came  into  be- 

Rights  over 

waters.   (6)  The    ing,  and   consequently  that  law  contained  no 

legal  position  of  ,,  ,  .       1  ,  .  .          T. 

ship     rules    that    were    applicable   to   it.     It    runs 


through  the  territory  of  a  state  whose  civiliza- 
tion is  not  in  accordance  with  European  models,  and  which, 
therefore,  can  hardly  be  trusted  to  exercise  over  it  the  full 
control  of  a  territorial  sovereign  in  the  interests  of  European 
commerce.  Further,  it  was  made  by  a  company  under  French 
influence,  and  is  worked  for  profit  under  concessions  from  the 
Khedive  of  Egypt,  confirmed  by  his  suzerain,  the  Sultan. 
Moreover,  the  British  Government  has  become  a  large  share- 
holder in  the  company,  and  the  position  of  the  canal  as  part 
of  one  of  the  great  trading-routes  of  the  world  gives  it  an  in- 
ternational importance,  and  makes  it  an  object  of  concern  to 
the  diplomacy  of  the  maritime  powers.  It  is  sui  generis,  and 
its  legal  position  cannot  be  defined  apart  from  special  agree- 
ment. It  was  opened  in  1869;  but  not  till  1888  did  the 
powers  of  Europe  agree  upon  the  rules  applicable  to  it,  and 
embody  them  in  a  great  international  document.  The  inter- 
vening time  was  filled  up  with  disagreements  and  negotia- 
tions, which  proved  conclusively  the  truth  of  the  proposition, 
that  International  Law  as  it  stood  was  unable  to  solve  the 
difficulties  of  the  case.1  At  last  the  principle  of  neutraliza- 
tion was  applied  to  the  canal  by  the  Convention  of  October  29, 
1888,  which  was  signed  by  the  six  Great  Powers  of  Europe, 
and  also  by  Turkey,  Spain,  and  the  Netherlands.  The  states 
which  possess  the  greatest  political  and  commercial  interests 
in  the  canal  have  thus  combined  to  define  its  legal  status  and 

1  Lawrence,  Disputed  Questions  in  Modern  International  Law,  essay  II. 


CONNECTED  WITH  PEOPEETY  199 

lay  down  the  international  rules  under  which  it  is  to  be  worked. 
Strictly  speaking,  their  action  does  not  bind  the  powers  that 
were  not  parties  to  the  Convention,  but  as  none  of  these  latter, 
except  the  United  States  and  Japan,  are  of  first-rate  impor- 
tance, and  all  have  tacitly  acquiesced  in  what  was  done,  the 
practical  result  is  much  the  same  as  if  the  whole  body  of 
civilized  states  had  formally  expressed  their  adhesion  to  the 
new  order.  The  Convention  declares  that  the  canal  is  to  be 
open  in  time  of  war,  as  well  as  in  time  of  peace,  to  all  ships, 
whether  merchantmen  or  vessels  of  war,  whether  belligerent 
or  neutral;  but  no  acts  of  hostility  are  to  be  committed  either 
in  the  channel  itself  or  in  the  sea  to  a  distance  of  three 
marine  miles  from  either  end  of  it.  The  entrances  to  the 
canal  are  not  to  be  blockaded ;  the  stay  of  belligerent  vessels 
of  war,  or  their  prizes,  in  the  ports  at  either  end  of  it  is  not  to 
exceed  twenty -four  hours ;  and  belligerents  are  not  to  embark 
troops  or  munitions  of  war  within  the  canal  or  its  ports.  The 
right  of  Egypt  and  Turkey,  as  territorial  powers,  to  take 
steps  for  the  protection  of  the  canal  in  the  event  of  its 
being  threatened  is  reserved,  but  hedged  about  with  many 
securities  and  restrictions.  If  it  should  be  necessary  for  them 
to  resort  to  force  to  provide  for  the  safety  of  the  waterway, 
they  are  not  to  erect  permanent  fortifications  along  it  or 
interfere  with  its  free  use  for  peaceful  purposes.1  Great 
Britain  accompanied  her  acceptance  of  the  Convention  by  a 
reservation  of  her  liberty  of  action  in  the  state  of  transition 
through  which  Egypt  was  then  passing.2  But  in  1904  by 
Article  VI  of  the  British  and  French  Declaration  respecting 
Egypt  and  Morocco  she  expressed  her  adherence  to  the  stip- 
ulations of  October  29,  1888,  and  agreed  to  their  enforce- 
ment.3 They  had  been  observed  in  the  intervening  period, 

1  British  Parliamentary  Papers,  Egypt,  No.  2  (1889). 

2  Moore,  International  Law  Digest,  vol.  Ill,  p.  263. 

3  The  Declaration  is  printed  in  the  Appendix  to  volume  I  of  Oppenheim's 
International  Law,  and  in  volume  I  of  the  Supplement  to  the  American  Jour- 
nal of  International  Law. 


200  BIGHTS   AND   OBLIGATIONS 

and  there  is  now  no  obstacle  to  their  observance  in  future  as 
an  important  part  .of  the  conventional  law  of  the  civilized 
world. 

M.  Ferdinand  de  Lesseps,  the  great  French  engineer  who 
planned  the  Suez  Canal  and  brought  it  to  completion,  en- 
deavored in  his  later  years  to  pierce  the  Isthmus  of  Panama 
by  a  ship  canal  uniting  the  Atlantic  and  Pacific  oceans. 
The  company  that  he  formed  failed  in  1889  ;  but  the 
works  commenced  by  it  were  carried  on  to  some  extent  by 
a  body  called  the  New  Panama  Company,  formed  in  1894. 
In  1904  this  company  sold  its  possessions  and  privileges  to 
the  United  States,  which  has  since  continued  engineering 
operations  under  the  provisions  of  a  treaty  negotiated  with 
the  Republic  of  Panama  in  1903.  By  this  instrument  "  there 
is  granted  to  the  United  States  in  perpetuity  the  use,  occupa- 
tion, and  control  of  a  strip  ten  miles  wide  and  extending  three 
nautical  miles  into  the  sea  at  either  terminal,  with  all  lands 
lying  outside  of  the  zone  necessary  for  the  construction  of  the 
canal  or  for  its  auxiliary  works,  and  with  the  islands  in  the 
Bay  of  Panama."1  In  return  for  these  concessions,  an  im- 
mediate payment  of  ten  million  dollars  was  to  be  made,  and 
after  nine  years  an  annual  payment  of  a  quarter  of  a  mil- 
lion dollars.  The  works  on  the  canal  are  proceeding  rapidly, 
but,  as  is  always  the  case  with  such  undertakings,  they  are 
found  as  they  go  on  to  be  more  difficult  and  more  expensive 
than  was  anticipated.  It  is,  however,  morally  certain  that 
they  will  be  completed  in  a  few  years.  As  soon  as  this  hap- 
pens, a  most  important  international  agreement,  which  is 
called  from  the  names  of  its  negotiators  the  Hay-Pauncefote 
Treaty  of  1901,  will  come  into  operation.  It  supersedes  the 
Clayton-Bulwer  Treaty  of  1850,  and  provides  that  the  canal 
may  be  constructed  "  under  the  auspices  of  the  government  of 
the  United  States,  either  directly  at  its  own  cost,  or  by  gift 
or  loan  of  money  to  individuals  or  corporations."  The  "  ex- 
clusive right  of  providing  for  the  regulation  and  manage- 
1  Message  of  President  Roosevelt,  December  7,  1903. 


CONNECTED  WITH  PROPERTY  201 

merit  of  the  canal  is  conceded  to  the  United  States,  who  may 
police  it,  and  also,  by  implication  in  this  treaty  and  by 
the  provisions  of  the  treaty  of  1903  with  Panama,  build 
fortifications  and  use  military  force  for  its  protection.  The 
rules  already  described  as  controlling  the  navigation  of  the 
Suez  Canal  are  applied  mutatis  mutandis  to  the  Panama 
Canal ;  and  it  is  stated  as  the  first  clause  of  the  first  of  them 
that  the  canal  shall  be  free  and  open  to  the  vessels  of  com- 
merce and  of  war  of  all  nations  observing  these  rules,  on  terms 
of  entire  equality."  J  Basing  ourselves  on  the  facts  just  re- 
corded, we  may  assert  with  confidence  that  the  rules  in  ques- 
tion are  being  elevated  into  precepts  of  International  Law  by 
the  general  consent  of  maritime  and  trading  nations.  It  is  true 
that  Great  Britain  and  the  United  States  are  the  only  parties 
to  the  Hay-Pauncefote  Treaty  ;  but  since  they  embodied  in  it 
provisions  already  accepted  with  regard  to  the  Suez  Canal 
by  the  civilized  world,  it  is  exceedingly  improbable  that 
objections  will  be  raised  against  the  same  provisions  when 
applied  to  the  only  other  canal  of  the  like  kind  on  the> 
face  of  the  earth.  Both  canals  are  important  international 
works  made  artificially  by  the  concurrence  of  a  number 
of  powers  in  the  interests  of  the  world's  trade.  They 
differ  from  natural  straits  in  that  they  are  made  by  man, 
and  from  artificial  waterways,  like  the  Kiel  Canal  and  the 
Corinth  Canal,  in  that  they  are  not  the  work  of  the  local 
sovereign,  and  therefore  not  under  his  exclusive  control. 
Accordingly,  they  required  the  creation  of  new  rules  applic- 
able to  them  alone,  and  these  have  now  been  provided.  The 
question  whether  the  two  canals  have  been  really  neutralized 
will  be  discussed  later  on.2  Here  we  may  remark  in  passing 
that  the  refusal  to  describe  them  thus  because  they  are  not 
closed  to  the  ships  of  war  of  belligerents,  appears  to  overlook 
the  important  facts  that  belligerent  vessels  may  freely  pass 
through  the  waters  of  neutral  states  as  long  as  they  commit 

1  Moore,  International  Law  Digest,  vol.  Ill,  pp.  54,  219-221.  For  the 
contrary  view  see  an  Article  by  Kichard  Olney  in  The  American  Journal  of 
International  Law  for  April,  1911.  2  See  part  IV,  ch.  I. 


202 

no  acts  of  hostility  during  the  transit,  and  that  exactly  the 
same  condition  of  innocent  use  is  laid  on  them  while  they  are 
in  either  canal  or  within  three  marine  miles  of  its  ends. 

§91 

The  next  subject  we  have  to  discuss  under  the  head  of 
territorial  rights  over  waters  and  the  questions  connected 
therewith  is 

The  use  of  sea  fisheries. 

The   rules  of  International   Law  with  regard  to  them  are 

simplicity  itself.     Within  the  territorial  waters  of  a  state  its 

subjects   have  exclusive  rights  of  fishing,  but 

Rights  over  J  .  .       6» 

waters.  (7)  The  use  outside  territorial  waters,  on  the  high  seas, 
subjects  of  all  states  are  free  to  fish  on  the  one 
condition  that  they  do  so  peacefully.  These  rules  are, 
however,  often  modified  by  Conventions  giving  to  subjects  of 
one  power  the  right  to  fish  in  certain  specified  portions  of 
another's  marginal  waters ;  and  sometimes  controversies  arise 
as  to  the  meaning  and  extent  of  such  concessions.  More- 
over, fisher  folk  are  apt  to  quarrel  among  themselves  in 
places  where  the  subjects  of  two  or  more  states  have  rights 
in  common.  To  settle  these  disputes  often  requires  a  good 
deal  of  negotiation,  and  the  simple  precepts  of  the  common 
law  of  nations  are  interpreted  and  overlaid  by  a  large  number 
of  conventional  rules.  We  have  already  seen  how  this  may 
take  place,  when  we  gave  an  account  of  the  Bering  Sea 
dispute  in  connection  with  the  subject  of  claims  to  dominate 
open  waters.1  The  North  Sea  Fisheries  Convention  of  1883 
will  afford  another  illustration.  It  provides,  among  other 
things,  for  the  police  of  the  fishing  grounds  in  the  North  Sea 
which,  being  outside  territorial  waters,  are  enjoyed  in  com- 
mon by  the  subjects  of  all  the  signatory  powers.  The  con- 
tracting parties  agree  to  send  cruisers  to  enforce  the  regula- 
tions laid  down  in  the  Convention,  and  in  serious  cases  to 

1  See  §  86. 


CONNECTED  WITH  PROPERTY  203 

apprehend  offenders  and  take  them  into  one  of  the  ports  of 
their  own  country  for  trial.1  No  grave  international  dis- 
agreement exists  in  connection  with  these  fisheries ;  but  till 
lately,  Great  Britain  and  France  were  engaged  in  a  serious 
and  long-standing  dispute  with  regard  to  the  exact  nature 
and  extent  of  the  rights  given  to  French  fishermen  along 
a  portion  of  the  coast  of  Newfoundland  by  the  Treaty  of 
Utrecht  and  subsequent  agreements.  The  matter  was,  how- 
ever, amicably  settled  in  1904  by  the  renunciation  on  the 
part  of  France  of  the  greater  part  of  her  rights  along  what 
was  called  the  Treaty  Shore,  on  condition  of  certain  territo- 
rial compensations  in  West  Africa  and  pecuniary  indem- 
nities for  such  of  her  citizens  as  were  obliged  to  abandon 
their  establishments  on  the  Newfoundland  coast.2  The 
questions  concerning  the  Canadian  fisheries,  which  have 
from  time  to  time  arisen  between  Great  Britain  and  the 
United  States,  have  at  last  reached  a  final  and  satisfactory 
settlement.  In  further  illustration  of  the  subject  we  will 
give  a  brief  account  of  the  diplomatic  history  of  this  impor- 
tant matter. 

By  the  treaty  of  1783,  which  recognized  the  independence 
of  the  United  States,  their  inhabitants  were  granted  rights  of 
fishing  on  "  such  part  of  the  coast  of  Newfoundland  as  British 
fishermen  shall  use,"  and  also  on  the  coasts  of  all  other  British 
dominions  in  North  America.3  During  the  War  of  1812  these 
rights  could  not  be  exercised.  The  Treaty  of  Ghent,  which 
concluded  the  struggle  in  1814,  was  silent  upon  the  subject  of 
the  fisheries ;  and  in  consequence  a  controversy  arose  between 
the  two  governments.  The  United  States  claimed  that  the 
treaty  of  1783  did  but  recognize  fishing  rights  that  existed 
independently  of  it,  and  therefore  remained  intact  even  if  the 
fishery  clause  in  it  were  abrogated  by  the  war.  The  British 
held  that  the  rights  in  question  were  created  by  the  treaty, 

1  Hertslet,  Treaties,  vol.  XV,  p.  795  et  seq. 

2  Supplement  to  the  American  Journal  of  International  Law,  vol.  I,  pp.  9-13. 
8  Treaties  of  the  United  States,  p.  377. 


204  BIGHTS  AND  OBLIGATIONS 

and  fell  to  the  ground  when  the  outbreak  of  war  destroyed 
the  clause  on  which  they  rested.  The  matter  was  settled  for 
a  time  by  the  treaty  of  1818,  by  which  it  was  agreed  that 
citizens  of  the  United  States  should  have  in  future  the  liberty 
of  taking  fish  of  every  kind  on  a  clearly  defined  part  of  the 
coast  of  Newfoundland,  and  also  on  the  southern  and  eastern 
coasts  of  Labrador,  but  not  in  the  territorial  waters  of  other 
portions  of  the  North  American  possessions  of  Great  Britain. 
American  fishermen  were  "  to  have  liberty  forever  to  dry  and 
cure  fish  in  any  of  the  unsettled  bays,  harbors  and  creeks  of 
the  southern  part  of  the  coast  of  Newfoundland  hereabove 
described,  and  of  the  coast  of  Labrador,"  but  were  to  lose  this 
privilege  as  soon  as  the  inlets  became  settled,  unless  the 
inhabitants  chose  to  allow  them  to  land  as  before.  With 
regard  to  other  bays  and  harbors,  the  fishermen  of  the  United 
States  were  to  be  permitted  to  enter  them  "for  the  purpose 
of  shelter  and  of  repairing  damages  therein,  of  purchasing 
wood,  and  of  obtaining  water,  and  for  no  other  purpose 
whatever. " 1  This  treaty  is  important,  because  the  subsequent 
diplomatic  history  of  the  question  hinges  on  it.  All  other 
arrangements  have  proved  to  be  temporary,  and  when  they 
have  one  by  one  disappeared,  the  powers  concerned  have  been 
thrown  back  upon  its  stipulations.  Unfortunately,  the  pro- 
gress of  settlement,  and  the  changes  both  in  British  commer- 
cial policy  and  in  methods  of  fishing,  have  rendered  it  very 
inadequate  to  the  conditions  under  which  the  industry  is 
pursued  in  modern  times,  and  in  addition  complications  have 
arisen  as  to  the  meaning  to  be  attached  to  the  phrase  "  coasts, 
bays,  creeks,  or  harbors,"  and  also  as  to  the  validity  of  fishing 
regulations  made  by  the  Newfoundland  government.  The 
English  authorities  have  been  disposed  to  claim  wide  inlets, 
and  great  expanses  of  water  as  British  bays  from  which  Amer- 
ican fishermen  were  excluded  by  the  terms  of  the  treaty,  while 
the  authorities  of  the  United  States  have  endeavored  to  restrict 
British  bays  within  narrow  limits  and  place  the  widest  con- 
1  Treaties  of  the  United  States,  pp.  416,  416. 


CONNECTED  WITH  PROPERTY  205 

struction  upon  the  rights  accorded  to  their  fellow-citizens  in 
them.  The  treaty  of  1818  remained  in  force  for  thirty-six 
years,  when  the  disputes  that  arose  under  it  became  so  numer- 
ous and  so  troublesome  that  an  attempt  was  made  to  solve  them 
on  the  basis  of  mutual  concession,  and  they  were  included  along 
with  matters  of  trade  and  navigation  in  the  Reciprocity  Treaty 
of  1854.  The  extent  of  British  coast  along  which  American 
fishermen  were  allowed  to  ply  their  craft  was  greatly  enlarged, 
and  British  fishermen  received  in  return  the  right  of  fishing 
along  the  eastern  coast  of  the  United  States  north  of  the  36th 
parallel  of  latitude,  fisheries  in  rivers  and  the  mouths  of  rivers 
being  in  both  cases  reserved  to  subjects  of  the  territorial 
power.  Moreover,  provision  was  made  for  the  delimitation 
of  the  boundaries  of  such  places  as  were  excluded  from  the 
common  liberty  of  fishing.  The  treaty  was  to  remain  in  force 
for  ten  years,  and  after  that  time  each  of  the  contracting 
parties  possessed  the  right  of  bringing  it  to  an  end  by  giving 
a  year's  notice  to  the  other.1  The  Government  of  the  United 
States  "  denounced  "  it  in  1865,  and  in  1866  it  ceased  to  exist. 
The  two  powers  were  thus  thrown  back  upon  the  treaty 
of  1818,  which  proved  as  productive  of  disagreements  as 
before ;  and  in  1871  another  attempt  at  a  settlement  was  made 
in  the  famous  Treaty  of  Washington  which  provided  for  the 
Alabama  Arbitration.  By  it  the  provisions  of  the  Reciprocity 
Treaty  of  1854  were  reestablished  with  a  few  alterations  and 
additions.  British  subjects  received  the  right  to  fish  on  the 
eastern  coasts  of  the  United  States  north  of  latitude  39° 
instead  of  latitude  36°,  and  it  was  agreed  that  a  commission 
should  sit  to  determine  whether  the  rights  granted  by  Great 
Britain  to  the  United  States  were  more  valuable  than  those 
granted  by  the  United  States  to  Great  Britain,  in  which  case 
a  corresponding  pecuniary  indemnity  was  to  be  paid  by  the 
United  States  to  Great  Britain.2  This  provision  was  a  virtual 
abandonment  of  the  original  contention  that  the  inhabitants 
of  the  United  States  had  a  right  apart  from  treaty  stipulations 

1  Treaties  of  the  United  States,  pp.  448-463.  2  Ibid.,  pp.  486-488. 


206  RIGHTS   AND   OBLIGATIONS 

to  share  in  the  British  fisheries.  Indeed,  the  whole  course  of 
the  negotiations  from  1818  onwards  shows  that  the  matter  was 
felt  to  be  one  for  mutual  concession.  The  commission  ap- 
pointed under  the  treaty  of  1871  decided  in  favor  of  Great 
Britain,  and  awarded  her  compensation  to  the  amount  of  five 
and  a  half  million  dollars,  which  the  United  States  Govern- 
ment promptly  paid,  though  they  contended  it  was  greatly  in 
excess  of  the  value  of  the  rights  their  citizens  had  gained.  At 
the  end  of  ten  years  from  the  time  when  the  fishery  arrange- 
ments came  into  force  in  1873,  either  party  to  the  treaty  was 
to  have  the  right  of  terminating  them  by  giving  two  years' 
notice  to  the  other.  They  were  brought  to  an  end  in  1885  in 
consequence  of  notice  given  by  the  President  of  the  United 
States  in  1883.  The  provisions  of  the  treaty  of  1818  were 
revived  thereby,  and  the  old  difficulties  began  immediately 
to  recur.  In  the  hope  of  terminating  them  the  British  Gov- 
ernment sent  plenipotentiaries  to  Washington  in  1887,  charged 
with  the  duty  of  negotiating  a  fresh  fishery  treaty.  They 
succeeded  in  coming  to  an  agreement  with  the  American 
plenipotentiaries  upon  the  basis  of  a  minute  and  accurate  de- 
limitation of  the  bays  within  which  the  inhabitants  of  the 
United  States  were  forbidden  to  fish  by  the  treaty  of  1818, 
and  of  an  equally  elaborate  description  of  the  privileges  and 
duties  of  American  fishing  vessels  in  Canadian  ports  and 
harbors.1  But  the  treaty  they  negotiated  was  refused  rati- 
fication by  the  Senate  of  the  United  States ;  and  the  con- 
tracting parties  were  thrown  back  upon  the  provisions  of  a 
modus  vivendi  which  had  been  agreed  on  by  the  plenipo- 
tentiaries as  a  means  of  avoiding  difficulties  in  the  interval 
between  the  signing  of  the  treaty  and  its  coming  into  force.2 
This  plan  of  a  temporary  solution  to  tide  over  present  diffi- 
culties was  resorted  to  on  several  occasions ;  but  at  length  a 
permanent  settlement  was  reached.  The  two  powers  referred 

1  British  Parliamentary  Papers,  United  States,  No.  1  (1888). 

2  For  the  whole  subject  see  Moore,  International  Law  Digest,  vol.  I,  pp. 
767-874  ;  Wheaton,  International  Law  (Dana's  ed.),  pp.  342-350  and  note 
142  ;  Hall,  International  Law,  5th  ed.,  pp.  94,  95. 


CONNECTED   WITH   PROPERTY  207 

the  questions  at  issue  to  an  arbitral  tribunal  appointed  under 
the  provisions  of  the  Hague  Convention  of  1907  for  the  peace- 
ful adjustment  of  international  disputes.  Its  award,  a  mag- 
nificent piece  of  judicial  reasoning,  was  given  in  September, 
1910.  It  adopted  in  the  main  the  British  contentions  as  to 
the  extent  of  the  bays  from  which  American  fishermen  are 
excluded  ;  and  it  rejected  the  American  claim  to  restrict  the 
sovereignty  of  Great  Britain  in  the  territorial  waters  affected 
by  the  controversy,  but  gave  to  a  mixed  commission  of  ex- 
perts the  right  of  pronouncing  on  the  reasonableness  of 
British  regulations  made  to  control  the  fisheries  therein.1 

§92 

The  last  point  we  have  to  consider  in  connection  with  our 
present  subject  is 

The  navigation  of  great  arterial  rivers. 

With  regard  to  these  we  must  distinguish  between  what 
are  now  called  international  rivers,  and  great  navigable 
streams  that  from  source  to  mouth  flow  through  Rights  over 
the  territory  of  one  state  only.  By  the  former  ^iJJ great 
we  mean  rivers  that  are  highways  of  commerce  arterial  rivers, 
and  run  through  the  territory  of  two  or  more  states,  or  form 
a  boundary  between  states,  or  both.  In  their  case  there  can 
be  no  doubt  that  each  state  possesses  territorial  rights  over 
that  portion  of  the  river  which  is  entirely  within  its  own 
boundaries.  But  have  all  the  riparian  states  a  right  to  navi- 
gate the  whole  river,  or  may  each  exclude  the  vessels  of  the 
others  from  its  own  portion  of  the  waterway  ?  There  is  no 
general  agreement  among  authoritative  writers  on  Interna- 
tional Law  with  regard  to  this  question.  Some  hold  that  there 
is  a  right  of  navigation,2  others  deny  the  existence  of  anything 
of  the  kind,3  while  a  third  school  declare  that  the  right  is  im- 
perfect,—  an  adjective  which  may  mean  either  that  the  right 

1  For  the  full  text  of  the  Award  see  American  Journal  of  International 
Law,  vol.  IV,  pp.  948-1000. 

2  E.g.  Bluntschli,  Droit  International  Codifie,  §  314. 
8  E.g.  Twiss,  Law  of  Nations,  vol._I,  §  145. 


208  RIGHTS   AND   OBLIGATIONS 

is  real  but  its  enjoyment  must  normally  be  regulated  by 
agreement,1  or  that  it  cannot  be  exercised  unless  the  safety 
and  convenience  of  the  state  according  it  is  secured  by 
special  Convention.2  This  last  version  of  the  doctrine  of  im- 
perfect right  seems  self-contradictory ;  for  a  right  that  can- 
not be  insisted  upon  is  no  right  at  all,  but  a  mere  permission 
depending  on  good  will.  The  other  two  schools  derive  op- 
posing doctrines  from  irreconcilable  assumptions.  The  prin- 
ciple that  every  state  has  an  unlimited  proprietary  right  to 
its  land  and  water  leaves  no  room  for  a  servitude  of  innocent 
passage  over  international  rivers.  The  principle  that  the 
general  convenience  of  mankind  overrides  all  particular  privi- 
leges renders  meaningless  the  assertion  that  states  have  an 
exclusive  right  to  their  own  territory.  But  International 
Law  is  not  deduced  from  assumed  premises.  It  is  based  on 
the  practice  of  nations  ;  and  we  must  examine  the  cases  that 
have  occurred,  and  endeavor  to  obtain  from  them  some  con- 
sistent rule.  We  find  that  the  great  European  rivers  that 
run  through  the  territories  of  more  powers  than  one  were 
subject  to  tolls  till  the  beginning  of  the  nineteenth  century. 
But  in  1804  the  Congress  of  Rastadt  abolished  the  Rhine 
tolls  ;  and  in  1815  the  Congress  of  Vienna  decided  that  the 
great  rivers  of  Western  Europe  should  for  the  future  be  open 
to  navigation,  and  that  the  tolls  to  be  levied  on  each  of  them 
should  be  settled  by  common  accord  among  the  riparian 
powers.  Accordingly  the  Rhine,  the  Elbe,  and  other  rivers 
were  at  various  times  after  1815  opened  to  free  navigation  on 
payment  of  such  moderate,  dues  as  were  sufficient  to  recoup 
the  territorial  powers  for  their  expenditure  upon  the  water- 
way.3 In  the  negotiations  connected  with  these  agreements 
a  question  of  the  first  importance  emerged  from  the  crowd  of 
details.  Was  the  stipulated  freedom  to  be  confined  to  vessels 
of  the  states  through  whose  territories  the  river  flowed,  or  was 
it  to  include  those  of  other  states  who  might  desire  to  enter  the 

1  Westlake,  International  Law,  part  I,  pp.  164,  167. 

2  Wheaton,  International  Law,  §  193. 

8  Hall,  International  Law,  6th  ed.,  pp.  137,  138. 


CONNECTED  WITH  PROPERTY  209 

river  from  the  sea  ?  Practice  varied  during  the  first  half  of 
the  nineteenth  century ;  but  in  1856  the  great  international 
Treaty  of  Paris  opened  the  Danube  to  the  flags  of  all  nations, 
and  the  concession  was  interpreted  in  the  widest  sense  by 
the  signatory  powers.  A  European  commission  was  charged 
with  the  duty  of  executing  the  necessary  engineering  works 
at  the  mouth  of  the  river,  and  permitted  to  levy  tolls  suf- 
ficient to  pay  their  cost.  The  authority  of  this  commission 
has  been  continued  and  increased  by  a  series  of  international 
agreements,  the  last  of  which,  made  in  1904,  provided  for  the 
prolongation  of  its  powers  for  successive  periods  of  three 
years,  but  reserved  to  each  of  the  eight  states  represented  on 
it  the  right  to  bring  it  to  an  end  by  denouncing  it  a  year 
before  the  conclusion  of  one  of  the  triennial  periods. 

Outside  Europe  we  find  the  same  tendencies  at  work  with 
regard  to  the  great  arterial  rivers  of  the  American  continent. 
When  the  United  States  obtained  formal  recognition  of  their 
independence  from  Great  Britain  in  1783,  Spain  held  Loui- 
siana and  Florida  and  thus  possessed  both  banks  of  the  Mis- 
sissippi at  its  mouth  and  for  a  considerable  distance  inland. 
The  American  Government  claimed  for  its  citizens  free  navi- 
gation to  the  sea  as  a  right ;  but  after  long  negotiations  the 
dispute  was  terminated  in  1795  by  the  Treaty  of  San  Lorenzo 
el  Real,  which  provided  that  the  navigation  of  the  river  from 
its  source  to  its  mouth  should  be  free  as  a  concession  to  the 
subjects  and  citizens  of  the  two  powers.1  With  regard  to 
the  St.  Lawrence  events  followed  a  similar  course.  The 
United  States  asserted  and  Great  Britain  denied,  that  Ameri- 
can citizens  had  a  right  by  the  law  of  nations  to  navigate 
that  portion  of  the  river  which  flows  entirely  through  Cana- 
dian territory.  The  Reciprocity  Treaty  of  1854  granted  the 
privilege  demanded,  in  return  for  a  grant  to  British  subjects 
of  freedom  to  navigate  Lake  Michigan,  but  reserved  a  right 
of  suspending  the  concession  on  giving  due  notice  ;  and 

1  Twiss,  Law  of  Nations,  vol.  I,  §  145 ;  Treaties  of  the  United  States, 
pp.  1007,  1382-1384. 


210  RIGHTS   AND   OBLIGATIONS 

finally  by  the  Treaty  of  Washington  of  1871  the  navigation 
of  the  British  portion  of  the  St.  Lawrence  was  thrown  open 
"  forever  "  to  citizens  of  the  United  States.  The  concession, 
however,  did  not  include  subjects  of  other  countries,  though 
it  did  extend  to  three  other  rivers,  the  Yukon,  the  Porcupine, 
and  the  Stikine.1  In  1909  the  navigation  and  use  of  bound- 
ary waters  was  regulated  by  treaty  between  the  two  powers.2 
The  international  rivers  of  South  America  have  been  thrown 
open  to  vessels  of  all  nations,  sometimes  by  agreement,  as 
when  in  1853  England,  France,  and  the  United  States  se- 
cured the  freedom  of  the  Parana  and  the  Paraguay  by  treaty 
with  the  Argentine  Confederation,  and  sometimes  by  uni- 
lateral act,  as  when  in  1867  the  Emperor  of  Brazil  opened 
the  Amazon  by  decree.3  With  regard  to  Africa,  the  Final 
Act  of  the  West  African  Conference  of  1885  decreed  that  the 
Congo,  the  Niger,  their  affluents,  and  with  few  reservations 
all  the  rivers  of  the  Free  Trade  Zone  created  by  Article  I, 
should  be  freely  open  to  the  merchant  ships  of  all  nations.* 

We  venture  to  draw  from  the  facts  just  recited  the  con- 
clusion that,  with  regard  to  the  navigation  of  rivers  that 
traverse  more  countries  than  one,  International  Law  is  in  a 
state  of  transition.  Strictly  speaking,  a  state  possessed  of 
one  portion  of  such  a  river  can  exclude  therefrom  the  vessels 
of  the  co-riparian  powers,  unless  a  right  of  navigation  has 
been  granted  to  them  by  treaty.  Yet  as  a  matter  of  comity, 
hardly  to  be  distinguished  from  obligation,  it  does  not  with- 
hold such  right,  nor  does  it  levy  tolls  for  any  other  purposes 
than  to  provide  lights  and  buoys,  and  cover  the  incidental 
expenses  of  keeping  the  waterway  in  good  condition.  The 
tendency  in  favor  of  freedom  of  navigation  is  so  strong 
that  any  attempt  to  revive  the  exercise  of  the  right  of  total 

1  Moore,  International  Law  Digest,  vol.  I,  pp.  626-636  ;  Treaties  of  the 
United  States,  pp.  488,  489. 

2  Supplement  to  the  American  Journal  of  International  Law,  vol.  IV, 
pp.  239-249. 

8  Hall,  International  Law,  5th  ed.,  pp.  138,  139. 

4  Supplement  to  the  American  Journal  of  International  Law,  vol.  Ill, 
pp.  10-23 ;  British  Parliamentary  Papers,  Africa,  No.  4  (1885),  pp.  308,  311. 


CONNECTED   WITH   PROPEKTY  211 

exclusion,  or  even  to  levy  toll  for  profit,  would  be  regarded 
as  an  aggression.  Usage  is  turning  against  the  ancient  rule. 
It  is  now  set  aside  by  treaty  stipulations  ;  but  in  time  the 
new  usage  founded  on  them  will  give  rise  to  a  new  rule,  and 
no  treaty  will  then  be  required  to  provide  for  the  free  navi- 
gation of  an  international  river  by  the  co-riparian  states, 
while  in  all  probability  the  vessels  of  other  nations  will  be  al- 
lowed to  come  and  go  without  let  or  hindrance.  It  is,  and 
no  doubt  will  remain,  an  admitted  principle  that  the  right 
of  traversing  the  stream  carries  with  it  the  right  of  using 
the  banks  for  purposes  incidental  to  navigation.1 

With  regard  to  great  arterial  rivers  which  run  in  their 
entire  course  through  the  territory  of  one  state,  it  must  be 
allowed  that  the  power  of  exclusion  still  remains  unfettered. 
Some  states  have  adopted  a  policy  of  free  admission,  while 
others  have  restricted  navigation  to  vessels  owned  by  their 
own  subjects.  On  the  facts  as  they  stand,  it  would  be  dif- 
ficult to  maintain  that  there  was  even  an  inchoate  right  of 
admission  vested  in  foreign  ships. 

1  For  a  learned  and  exhaustive  discussion  of  the  subject  see  Westlake, 
International  Law,  part  I,  ch.  vii,  and  Nys,  Droit  International,  vol.  Ill, 
pp.  109-131. 


CHAPTER  III 

BIGHTS  AND  OBLIGATIONS   CONNECTED  WITH  JURISDICTION 

§93 

THERE  are  two  principles  either  of  which  could  be  made 
the  basis  of  a  system  of  rules  with  regard  to  jurisdiction.  It 
A  state  has  juris-  might  be  held  that  the  authority  of  the  state 
personsYnd sU  should  be  exercised  over  all  its  citizens  wherever 
Xoryjtith"8  they  may  be  f°und>  or  tnat  it;  should  be  exer- 
few  exceptions.  cised  over  all  persons  and  all  matters  within  its 
territorial  limits.  Modern  International  Law,  being  per- 
meated throughout  by  the  doctrine  of  territorial  sovereignty, 
has  adopted  the  latter  principle  as  fundamental.  But,  inas- 
much as  it  could  not  be  applied  at  all  in  some  cases,  and  in 
others  its  strict  application  would  be  attended  with  grave  in- 
convenience, various  exceptions  have  been  introduced,  based 
upon  the  alternative  principle  that  a  state  has  jurisdiction 
over  its  own  subjects  wherever  they  may  be.  All  that  we 
can  venture  to  put  forth  in  the  way  of  a  broad  general 
proposition  is  that  jurisdiction  is  in  the  main  territorial. 
In  order  to  deal  with  the  subject  properly,  we  must  attack 
it  in  detail;  and  the  first  rule  we  will  lay  down  is  that  A 

STATE  HAS  JURISDICTION  OVER  ALL  PERSONS  AND   THINGS 

WITHIN  ITS  TERRITORY.  There  are  a  few  exceptions;  but 
we  will  not  consider  them  till  we  have  dealt  with  the  general 
principles. 

§94 

Among  the  persons  who,  being  within  the  state's  territory, 
are  subject  to  its  jurisdiction,  the  first  class  to  be  considered 

212 


RIGHTS,   ETC.,   CONNECTED   WITH  JURISDICTION       213 

consists  of  its  natural-born  subjects.  Each  country  defines  for 
itself  by  its  municipal  law  what  circumstances  of  birth  shall 
make  a  person  its  subject.  It  may  consider  Natural.born  sub. 
the  locality  of  the  birth  to  be  the  all-important  Jects- 
point,  making  a  subject  of  every  child  born  within  its  terri- 
tory, no  matter  whether  the  parents  are  natives  or  foreigners ; 
or  it  may  regard  the  nationality  of  the  parents,  or  one  of 
them,  as  the  determining  circumstance,  making  subjects  of 
the  children  of  subjects,  wherever  born,  and  aliens  of  the 
children  of  aliens,  wherever  born.  Both  principles  give  the 
same  result  in  the  case  of  those  born  within  the  state  of 
parents  who  are  its  subjects,  and  such  persons  will  always 
form  the  vast  majority  of  the  inhabitants  of  any  but  a  very 
new  country.  There  can  be  no  doubt  that  they  are  natural- 
born  subjects,  whether  the  law  of  the  land  adopts  the  first 
or  the  second  of  the  views  just  enunciated.  But  in  other 
cases  these  principles  lead  to  different  results.  For  instance, 
those  born  outside  the  state's  territory  of  parents  who  belong 
to  the  state,  are  aliens  according  to  the  first  principle,  but 
subjects  according  to  the  second;  and  those  born  within  the 
state's  territory  of  parents  who  do  not  belong  to  the  state,  are 
subjects  according  to  the  first  principle,  but  aliens  according 
to  the  second.  States  are  free  by  virtue  of  their  indepen- 
dence to  adopt  in  these  matters  what  principles  they  please, 
and  they  embody  in  their  laws  a  great  variety  of  rules.  The 
result  is  that  conflicting  claims  and  difficulties  of  all  sorts 
arise  on  the  subject  of  nationality  and  citizenship.  England 
and  the  United  States,  for  instance,  adopt  with  regard  to 
children  of  their  own  subjects  and  citizens  the  rule  of  nation- 
ality. Though  born  abroad  they  are  British  or  American 
subjects  as  the  case  may  be.1  But  by  an  Act  of  Congress 
passed  on  March  2,  1907,  in  order  to  receive  the  protection 
of  the  United  States  all  children  born  abroad  of  American 
citizens  must,  on  reaching  the  age  of  eighteen,  record  at  an 

1  7  Anne,  c.  5 ;  4  Geo.  II,  c.  21 ;  13  Geo.  Ill,  c.  21 ;  Revised  Statutes  of 
the  United  States,  §§  1993,  2172. 


214  RIGHTS  AND   OBLIGATIONS 

American  consulate  their  intention  and  desire  to  remain 
citizens  of  the  United  States  and  to  become  resident  therein. 
They  must  also  take  the  oath  of  American  allegiance  at  the 
age  of  twenty-one.  With  regard  to  the  children  of  for- 
eigners the  two  countries  adopt  the  principle  of  locality,  and 
claim  as  their  own  the  children  born  within  their  dominions.1 
France  used  to  adopt  for  all  purposes  the  principle  of  nation- 
ality, and  held  children  to  be  subjects  of  their  parents'  state, 
wherever  they  were  born.2  But  by  the  laws  of  1889  and 
1893  great  concessions  were  made  to  the  principle  of  locality, 
or  in  other  words,  the  jus  sanguinis  was  largely  modified  by 
the  jus  soli.  At  the  present  time  any  person  born  of  foreign 
parents  on  French  soil  is  French  if  one  of  his  parents  was 
born  in  France.  Should,  however,  that  one  be  the  mother, 
he  may  disclaim  French  nationality  at  any  time  during  the 
year  after  his  twenty-first  birthday  and  retain  the  nationality 
of  his  parents. 

From  the  brief  outline  we  have  just  given  it  is  obvious 
that  persons  of  double  nationality  may  often  be  found.  For 
instance,  a  child  born  in  England  of  French  parents  would 
be  a  British  subject  according  to  the  law  of  England,  and  a 
French  subject  according  to  the  law  of  France.  In  such 
cases  there  is  evident  danger  of  serious  complications  if  each 
state  acts  upon  its  extremest  rights.  But  difficulties  are 
generally  avoided  by  the  tacit  consent  of  each  to  attempt 
no  exercise  of  authority  over  such  a  citizen  as  long  as  he 
remains  outside  its  borders,  and  to  make  no  objection  to  the 
exercise  of  authority  over  him  by  the  other  while  he  resides 
within  its  limits.  And  further,  the  laws  of  several  countries 
give  to  persons  of  double  nationality  a  right  of  choice  on 
arriving  at  years  of  discretion,  though  it  is,  of  course,  possi- 
ble that  the  option  may  not  be  exercised.  Thus  in  England 
the  child  of  aliens  may  elect  to  possess  the  nationality  of  his 

1  Constitution  of  the  United  States,  14th  Amendment ;  Calvin's  Case,  for 
which  see  Howell's  State  Trials,  vol.  II,  and  Broom's  Constitutional  Law. 

2  Code  Civil,  I,  I,  i,  10. 


CONNECTED    WITH  JURISDICTION  215 

parentage  when  he  comes  of  age.1  Illegitimate  children  are 
as  a  rule  held  to  belong  to  the  state  of  which  their  mother  is 
a  subject.  In  matters  like  these  International  Law  simply 
recognizes  as  facts  the  results  of  the  operations  of  municipal 
law.  It  does  not  define  natural-born  subjects  ;  but  it 
does  say  that  all  the  natural-born  subjects  of  a  state  are 
under  its  jurisdiction  within  its  territories  and  entitled  to  its 
protection  outside  them.  Their  privileges  with  respect  to 
the  state  are  of  the  widest  kind,  as  also  are  their  obligations 
towards  it.  The  tie  of  allegiance  between  it  and  them  is 
drawn  very  close.  In  most  countries  they  are  eligible  for 
offices  denied  even  to  naturalized  subjects  and  citizens, 
and  their  responsibilities  are  commensurate  with  their 
rights. 

§95 

The  class  next  in  importance  of  those  who  being  within 
the  territory  are  under  the  jurisdiction  of  the  state  consists 
of  naturalized  subjects.  They  are  persons  be-  Naturalized  8ub. 
tween  whom  and  the  state  the  tie  of  allegiance  Jects- 
has  been  artificially  created  by  a  process  termed  naturaliza- 
tion. Sometimes  naturalization  takes  place  without  any 
special  formalities  as  an  inseparable  incident  of  something 
else.  For  instance,  the  inhabitants  of  territory  acquired  by 
conquest  or  cession  become  ipso  facto  subjects  of  the  state  to 
whose  rule  they  are  transferred,  though  a  conditional  right 
of  option  has  been  so  generally  granted  in  modern  times 
that  it  can  hardly  be  refused  in  future.2  Moreover,  when  a 
subject  marries  a  foreign  woman,  by  the  law  of  most  coun- 
tries the  wife  acquires  the  nationality  of  her  husband  and 
loses  her  own.  The  United  States,  however,  does  not  look 
upon  an  American  woman  married  to  a  foreigner  as  subject 
to  all  the  disabilities  of  alienage,  though  it  regards  a 
foreign  woman  married  to  an  American  as  an  American 

i  33  &  34  Victoria,  c.  14.  2  See  §  49. 


216  EIGHTS   AND   OBLIGATIONS 

subject.1  And  by  the  Act  of  Congress  of  1907  referred  to 
in  the  previous  section  the  American-born  wives  of  for- 
eigners may,  when  widowed  or  divorced,  recover  full  Ameri- 
can citizenship,  though  still  resident  abroad,  by  registering 
as  citizens  before  a  consul  of  the  United  States  within  a 
year  after  the  termination  of  the  marriage.  By  the  same 
act,  the  foreign-born  wives  of  Americans  can  in  similar 
circumstances  retain  by  a  like  registration  the  American 
citizenship  they  gained  by  marriage. 

But  naturalization  is  usually  effected  by  a  separate  for- 
mality, which  takes  place  when  a  foreigner  situated  in  a 
country  wishes  to  acquire  therein  the  rights  of  citizenship. 
It  is  the  policy  of  most  states  to  put  little  difficulty  in  the 
way  of  the  reception  of  new  subjects  under  such  circum- 
stances, though  many  of  them  dislike  the  naturalization  of 
their  own  subjects  in  foreign  states.  International  Law 
prescribes  no  general  formalities  for  use  when  a  change  of 
allegiance  is  effected  ;  but  the  law  of  each  state  lays  down 
the  conditions  on  which  it  will  receive  foreigners  into  the 
ranks  of  its  citizens.  Thus  in  the  United  States  the  general 
rule,  to  which,  however,  there  are  several  exceptions,  is  that 
the  alien  who  wishes  to  become  a  citizen  must  have  resided 
in  the  country  and  been  of  good  behavior  for  at  least  five 
years,  and  have  made  a  declaration  of  intention  to  become  a 
citizen  at  least  two  years  before  admission  to  citizenship. 
At  such  admission  he  must  take  the  oath  of  allegiance,  and 
forswear  allegiance  to  the  country  of  his  birth.  He  must 
also  renounce  any  hereditary  title  he  may  possess.2  In  Eng- 
land till  1870  naturalization  could  be  effected  only  by  Act 
of  Parliament ;  but  under  a  law  3  passed  in  that  year  a  certifi- 
cate of  naturalization  may  be  granted  by  the  Secretary  of 
State  for  the  Home  Department  at  his  discretion  to  any 
alien  who  has  resided  in  the  United  Kingdom  or  been  in  the 

1  Moore,  International  Law  Digest,  vol.  Ill,  pp.  448-454. 

2  Revised  Statutes,  title  XXX,  Naturalization. 

8  The  Naturalization  Act,  33  &  34  Victoria,  c.  14. 


CONNECTED   WITH  JURISDICTION  217 

service  of  the  Crown  for  five  years,  on  condition  that  he 
continues  to  reside  or  serve  as  before.  The  applicant  must 
take  the  oath  of  allegiance,  and  when  he  has  done  so  and 
obtained  the  certificate  he  becomes  a  British  subject  within 
the  United  Kingdom.  India  and  the  Colonies  have  laws  of 
their  own  with  regard  to  naturalization  in  them.  The  legal 
effects  of  naturalization,  in  so  far  as  they  concern  the  person 
naturalized  in  his  relation  to  the  state  of  his  choice,  are 
determined  exclusively  by  its  law.  He  has  to  fulfil  all  the 
duties  of  a  natural-born  citizen,  yet  some  states  do  not  grant 
him  all  the  political  rights  of  one.  In  England  he  could 
not  sit  in  either  House  of  Parliament  or  be  a  member  of 
the  Privy  Council,  till  the  Naturalization  Act  of  1870  re- 
moved all  political  disabilities.  In  the  United  States  all 
Federal  offices,  except  those  of  President  and  Vice-Presi- 
dent,  are  open  to  naturalized  citizens.1 

§96 

International  questions  may  arise  when  a  naturalized  sub- 
ject of  a  state  returns  to  the  country  of  his  original  alle- 
giance and  claims  to  be  treated  there  as  a  international 
citizen  of  his  new  country.  Is  he  to  be  so  2^™™" 
regarded,  or  is  he  rightly  made  to  perform  naturalization, 
towards  the  state  of  his  birth  all  the  obligations  of  a  citi- 
zen while  he  resides  within  its  territory  ?  The  practice  of 
states  is  diverse  on  this  point,  and  the  most  conflicting 
views  have  been  enunciated.  The  laws  of  civilized  coun- 
tries differ  both  as  to  the  position  they  take  towards  their 
own  citizens  naturalized  abroad,  arid  as  to  the  protection 
they  afford  to  foreigners  who  have  become  their  citizens  by 
naturalization.  With  regard  to  the  subject  who  has  ac- 
quired a  foreign  nationality,  we  find  that  on  the  one  hand 
the  old  doctrine  of  inalienable  allegiance,  set  forth  in  the 
maxim.  Nemo  potest  exuere  patriam,  is  still  acted  upon  in  all 
1  Constitution  of  the  United  States,  art.  II,  §  1. 


218  EIGHTS   AND   OBLIGATIONS 

its  severity  in  Russia,1  and  that  on  the  other  hand  a  "  right 
of  expatriation  "  has  been  asserted  by  the  Congress  of  the 
United  States  in  a  statute  of  1868  to  be  "a  natural  and 
inherent  right  of  all  people."2  Between  these  extremes  the 
law  of  the  great  majority  of  states  hovers,  imposing  con- 
ditions upon  expatriation  and  declaring  that  the  subject 
naturalized  abroad  loses  by  naturalization  his  quality  of 
citizen  for  most  purposes.  Some  states,  like  Italy,3  still 
regard  him  as  subject  to  military  service,  and  several  con- 
sider him  to  be  punishable  with  death  if  he  bears  arms 
against  his  native  country.  In  the  converse  case  of  a  citi- 
zen of  a  foreign  country  who  has  become  a  naturalized  sub- 
ject, some  states  regard  him  as  entirely  and  for  all  purposes 
on  an  equality  as  to  rights  and  protection  with  their  born 
subjects,  while  others  recognize  that  the  country  of  his  birth 
still  has  rights  against  him,  which  it  may  enforce  if  he  goes 
within  its  territory.  The  legislative  department  of  the 
United  States  Government  seems  to  be  in  advance  of  the 
executive  in  its  doctrine  of  a  natural  right  of  expatriation. 
Mr.  Wheaton,  when  Minister  at  Berlin  in  1840,  refused  to 
take  up  the  case  of  J.  P.  Knacke,  a  Prussian  who  had  been 
naturalized  in  the  United  States  and  had  returned  to  Prus- 
sia. He  was  there  compelled  to  serve  in  the  Prussian  army, 
and  Mr.  Wheaton  held  that  the  United  States  could  not 
interfere  to  protect  him  in  the  country  of  his  birth.  Mr. 
Webster  took  similar  ground  when  secretary  of  state  in 
1852,  in  the  cases  of  Ignacio  Tolen,  a  Spaniard,  and  Victor 
Depierre,  a  Frenchman.  But  General  Cass,  who  held  the 
same  high  office  in  1859,  drew  a  distinction  in  the  case  of 
Hofer,  a  Prussian,  between  inchoate  and  perfect  obligation, 
and  claimed  a  right  to  protect  naturalized  citizens  in  the 
countries  of  their  birth  unless  the  offence  was  complete 
before  expatriation.  The  Prussian  Government  declined  to 

1  Appendix  to  the  Report  of  the  Naturalization  Commission,  p.  69. 

2  Revised  Statutes,  §  1999. 

8  Appendix  to  the  Report  of  the  Naturalization  Commission,  p.  28. 


CONNECTED   WITH  JURISDICTION  219 

admit  this  contention,  but  gave  a  discharge  from  the  army 
at  the  request  of  the  United  States  Minister,  thus  granting 
as  a  favor  what  it  refused  as  a  right.1  The  executive  de- 
partment has  retained  the  position  taken  up  by  General 
Cass,  and  has  succeeded  in  getting  it  embodied  in  several 
treaties.  The  year  1868  witnessed  considerable  activity 
on  the  subject  of  naturalization,  and  Conventions  were 
negotiated  with  the  North  German  Confederation  which 
grew  in  1870  into  the  German  Empire,  and  no  less  than 
five  other  states,  four  of  them  being  German.  These  have 
since  been  followed  by  others,  and  all  of  them  stipulate  that 
subjects  of  the  one  state  who  have  become  naturalized  in 
the  other  shall  be  treated  by  their  original  country  as  in 
all  respects  subjects  of  the  country  of  their  naturalization; 
but  some,  notably  those  with  German  powers,  impose  the 
further  condition  of  five  years'  uninterrupted  residence  in 
the  land  of  adoption.  Moreover  nearly  all  of  them  provide 
that  naturalized  citizens  may  be  tried  on  their  return  to 
their  fatherland  for  offences  against  its  laws  committed 
before  their  emigration.  In  the  Austrian  treaty  and  three 
others  special  mention  is  made  of  military  service,  and  it 
is  stipulated  that  the  obligation  must  have  actually  accrued 
before  emigration  in  order  to  render  the  offender  liable  to 
trial  and  punishment  on  his  return  for  his  attempted  evasion 
of  it.  The  possibility  of  a  future  call  to  service  is  not  enough. 
The  call  must  actually  have  been  made.2  The  treaty  with 
Germany  contains  the  proviso  that  when  naturalized  citi- 
zens renew  their  residence  in  the  country  of  their  birth 
without  the  intent  to  return  to  the  country  of  their  naturali- 
zation, they  shall  be  deemed  to  have  renounced  their  ac- 
quired citizenship.  It  adds  that  "  the  intent  not  to  return 
may  be  held  to  exist  when  the  person  naturalized  in  the  one 

1Halleck,  International  Law  (Baker's  ed.),  vol.  I,  pp.  357-359;  Wheaton, 
International  Law  (Dana's  ed.),  p.  142,  note  ;  Wharton,  International  Law 
of  the  United  States,  §  181. 

2  Treaties  of  the  United  States,  pp.  37,  38,  43,  67,  1070. 


220  BIGHTS   AND   OBLIGATIONS 

country  resides  more  than  two  years  in  the  other  country. " ; 
Acting  on  this,  Germany  has  sometimes  called  on  her  na- 
tive-born subjects  who  have  returned  to  her  soil  after 
naturalization  and  five  years'  residence  in  the  United 
States,  to  resume  their  German  nationality  and  perform 
military  service,  or  has  insisted  on  her  right  to  expel  them 
as  undesirable  foreigners  before  the  expiration  of  the  two 
years,  in  cases  when  it  was  clear  that  they  emigrated  merely 
in  order  to  avoid  military  service,  and  boasted  on  their  re- 
turn of  the  success  of  their  plan.  Austria-Hungary  also 
has  sometimes  resorted  to  expulsion,  and  in  her  case  there 
has  been  no  need  to  apply  it  during  the  two  years'  interval, 
since  her  treaty  does  not  contain  the  stipulations  referred 
to  above,  but  says  merely  that  renunciation  of  the  acquired 
allegiance  is  allowable.  But  both  powers  have  been  willing 
to  refrain  from  expulsion  unless  the  defiance  of  their  au- 
thority was  specially  obnoxious.2  France,  under  her  law  of 
1889  as  diplomatically  interpreted  in  1901,  holds  that  a 
Frenchman  naturalized  abroad  without  the  consent  of  his 
government  does  not  lose  his  quality  of  Frenchman,  and  if 
he  returns  to  France,  will  be  punished  for  failure  to  perform 
military  service  and  called  on  to  perform  it,  should  he  have 
been  subject  to  it  at  the  date  of  his  naturalization.3  With 
England  the  question  does  not  arise,  since  she  does  not 
resort  to  conscription  to  fill  the  ranks  of  her  army. 

Till  recently  the  law  of  Great  Britain  embodied  the  doc- 
trine of  inalienable  allegiance ;  and  one  of  the  chief  causes 
of  the  war  with  the  United  States  in  1812  was  the  rigor  with 
which  that  doctrine  was  applied  by  her  government.  Brit- 
ish cruisers  took  from  American  vessels  on  the  high  seas 
naturalized  American  citizens  and  impressed  them  for  ser- 
vice in  the  royal  navy,  on  the  grounds  that  they  were  Brit- 
ish subjects  by  birth  and  that  no  forms  gone  through  in 

1  Treaties  of  the  United  States,  p.  791. 

2  Moore,  International  Law  Digest,  vol.  Ill,  pp.  376-406,  416-423. 
6 Ibid.,  pp.  699-601. 


CONNECTED    WITH  JUKLSDICTION  221 

America  could  divest  them  of  their  British  nationality.  But 
practice  softened  as  the  century  wore  on,  and  gradually 
opinion  changed,  till  by  the  Naturalization  Act  of  1870 l  the 
old  doctrine  of  the  common  law  was  abandoned,  and  Great 
Britain  recognized  the  naturalization  of  her  subjects  abroad. 
The  act  laid  down  that  they  lost  their  British  citizenship 
by  voluntarily  assuming  citizenship  in  another  state;  and, 
with  regard  to  naturalized  citizens  of  Great  Britain,  it  de- 
clared that  they  would  be  protected  wheresoever  they  might 
be  except  in  the  country  of  their  original  allegiance.  They 
would  not  be  entitled  to  the  privileges  of  British  citizens 
within  its  borders,  unless  by  acquiring  their  new  nationality 
they  ceased  to  be  its  subjects  according  to  its  laws  or  the 
stipulations  of  a  treaty  made  with  it. 

This  rule  seems  to  accord  best  with  sound  and  undoubted 
principles.  A  state  as  an  independent  political  unit  has  a 
right  to  accept  as  citizens  on  its  own  conditions  all  who  may 
come  into  its  territory  and  desire  to  attach  themselves  to  it. 
But  it  can  hardly  claim  a  right  to  dictate  to  another  state 
the  conditions  on  which  that  state  shall  give  up  all  claim  to 
the  allegiance  of  its  born  subjects.  To  do  so  would  be  to 
intrude  into  the  sphere  of  its  legislation  and  trench  upon  its 
independence.  No  surer  method  of  producing  international 
complications  could  well  be  found;  whereas  the  rule  of 
leaving  to  the  state  of  birth  to  determine  whether  it  will 
recognize  the  new  citizenship  or  not,  when  the  individual 
who  has  acquired  it  returns  within  its  territory,  precludes 
all  possibility  of  controversy,  while  recognizing  both  the 
right  of  the  naturalizing  state  to  acquire  citizens  in  its  own 
way,  and  the  right  of  the  mother  state  to  deal  as  it  thinks  fit 
with  all  persons  in  its  dominions  who  are  its  subjects  accord- 
ing to  the  provisions  of  the  local  law.  The  United  States 
and  some  other  countries,  as  we  have  just  seen,  endeavor 
to  settle  these  questions  by  treaty.  It  cannot  be  said  that 
there  is  any  rule  of  International  Law  with  regard  to  them. 
i  33  aud  34  Victoria,  c.  14. 


222  EIGHTS   AND   OBLIGATIONS 

Neither  opinion  nor  practice  is  yet  sufficiently  uniform  to 
create  one.  There  can  be  no  doubt  that  a  naturalized  citi- 
zen can  denaturalize  himself  and  get  rid  of  his  acquired 
character,  just  as  he  got  rid  of  the  character  given  him  by 
birth.  If  he  returns  to  his  fatherland  and  shows  an  inten- 
tion to  remain  there  indefinitely,  he  loses  his  citizenship  of 
naturalization,  but  does  not  necessarily  regain  his  citizen- 
ship of  birth.  In  order  that  it  may  revert  to  him  he  may 
have  to  comply  with  formalities  required  by  the  law  of  his 
native  land.1 

§97 

Having  dealt  with  natural-born  and  naturalized  subjects, 

we  have  now  to  deal  with  persons  who  are  not  subjects,  but 

are  regarded  as  residing   permanently  within 

Domiciled  aliens.  .       . °      ,  .    J 

the  state.  When  this  is  the  case,  it  becomes 
a  question  how  and  by  what  law  to  decide  such  private 
matters  as  their  capacity  to  contract,  age  of  majority,  power 
of  leaving  property  by  will,  and,  speaking  generally,  all 
things  connected  with  their  personal  status.  An  interest- 
ing chapter  of  legal  history  might  be  written  in  connection 
with  this  subject ; 2  but  it  will  be  sufficient  to  say  here  that 
at  present  on  the  continent  of  Europe  the  tendency  is  to  ap- 
ply the  law  of  the  country  to  which  the  individual  belongs, 
while  in  England  and  the  United  States  the  appeal  is  to  the 
law  of  the  country  where  he  has  his  permanent  residence.  We 
see  here  another  example  of  the  old  antithesis  between  jus 
sanguinis  and  jus  soli ;  but  each  view  is  somewhat  modified 
in  practice,  since  the  title  to  land  is  settled  by  the  law  of 
the  country  where  it  is  situated,  which  possibly  may  be 
neither  the  law  of  the  place  of  residence,  nor  the  law  of  the 
place  of  birth  or  naturalization.  In  spite,  however,  of  this 
qualification,  the  determination  of  a  man's  personal  status  is 
immensely  important.  The  continental  doctrine  that  law  is 

1  Moore,  International  Law  Digest^  vol.  Ill,  pp.  744,  754. 
8  Nys,  Droit  International,  vol.  II,  pp,  267-268. 


CONNECTED    WITH  JURISDICTION  223 

in  the  main  personal  has  the  merit  of  simplicity.  The  Brit- 
ish and  American  doctrine  that  it  is  in  the  main  territorial 
has  necessitated  the  evolution  of  a  lex  domicilii,  to  apply  to 
certain  cases  where  a  subject  of  one  state  is  found  in  the 
territory  of  another.  When  such  persons  not  only  reside  but 
also  intend  to  remain,  they  are  called  domiciled  aliens,  and 
various  rules  have  sprung  up  with  regard  to  them.  Since 
most  of  these  rules  deal  with  matters  of  private  right,  they 
lie  without  the  province  of  Public  International  Law  and  we 
shall  make  but  slight  reference  to  them  here.  But  in  so  far 
as  they  bear  on  questions  of  belligerent  capture  at  sea,  and 
the  liability  of  domiciled  aliens  to  war  burdens,  both  per- 
sonal and  pecuniary,  they  form  part  of  the  rules  of  warfare, 
and  will  be  discussed  when  we  come  to  deal  with  that  portion 
of  our  subject.1 

According  to  British  and  American  authorities,  it  is  possi- 
ble to  possess  either  a  domicile  of  origin,  which  in  the  case 
of  legitimate  children  is  the  domicile  of  the  father  at  the 
time  of  birth  and  in  the  case  of  illegitimate  children  that  of 
the  mother  at  the  same  time,  or  a  domicile  of  choice,  which 
is  the  domicile  deliberately  adopted  by  a  person  of  full  age.2 
Till  years  of  discretion  are  reached  the  domicile  of  a  child 
may  be  changed  by  a  change  of  domicile  on  the  part  of  its 
parents  or  guardians,  but  not  by  its  own  volition.  A  domi- 
cile of  choice  is  by  no  means  unchangeable.  A  man  may 
lose  it  and  gain  another  by  the  same  means  as  those  by 
which  he  acquired  it,  and  if  he  returns  to  his  own  country 
with  an  intention  of  remaining,  his  domicile  of  origin  easily 
reverts  to  him.  The  lex  domicilii  determines  all  matters  of 
personal  status  which  are  not  purely  political,  it  regulates 
the  succession  to  personal  property  in  cases  of  intestacy,  it 
settles  the  validity  of  any  will  relating  to  personalty,  and  it 
decides  upon  capacity  to  enter  into  ordinary  contracts,  and 
even  upon  capacity  to  marry.  So  great  is  the  respect  for 
domicile  in  England  that  a  British  court  has  enforced  a  con- 
1  See  part  HI,  ch.  II.  2  Westlake,  Private  International  Law,  §§  243,  25a 


2'24  EIGHTS   AND   OBLIGATIONS 

tract  made  in  France  by  persons  domiciled  in  France,  in- 
tended to  be  performed  in  France,  and  valid  according  to 
French  law,  though  it  would  have  been  invalid  on  grounds 
of  public  policy  if  it  had  been  made  in  England.1  On  the 
other  hand,  so  great  is  the  respect  for  nationality  in  France 
that  the  law  regards  capacity  to  marry  as  part  of  the  status 
of  a  French  citizen  and  considers  it  to  be  attached  to  him 
wherever  he  may  go,  as  long  as  he  retains  his  French  citi- 
zenship. Marriages  contracted  by  Frenchmen  abroad  must 
therefore  be  entered  into  with  all  the  forms  required  by  the 
law  of  France,  if  they  are  to  be  valid  in  France  as  well  as  in 
the  rest  of  the  world.2 

For  testamentary  and  most  other  purposes  a  man  can  have 
but  one  domicile  ;  but  for  commercial  purposes  he  may  have 
more  than  one,  since  he  may  reside  in  one  country  and  have  a 
house  of  trade  in  another,  or  be  a  partner  in  several  firms 
situated  in  different  countries. 


§98 

Aliens,  even  though  they  are  not  domiciled  in  a  state,  may 

come  under  its  laws  and  jurisdiction  to  a  certain  limited 

extent   when   within    it    as   travellers    passing 

Travellers  passing  <  f  a 

through  its  terri-  through  its  territory.  Such  persons  are  under 
its  criminal  jurisdiction  for  breaches  of  the 
peace  and  other  offences  against  person  and  property  com- 
mitted within  its  dominions ;  and  any  contracts  they  made 
could  be  enforced  by  process  directed  against  their  persons, 
as  well  as  against  any  property  they  might  possess  in  the 
state  in  question.  But  their  political  rights  and  personal 
status  could  be  in  no  way  affected  by  their  temporary  sojourn 
within  the  borders  of  a  foreign  land. 

1  Kaufman  v.  Gerson  and  Wife,  London  Times,  May  11,  1903. 

2  Wheaton,  International  Law  (Dana's  ed.),  p.  151  and  note. 


CONNECTED   WITH  JURISDICTION  225 

§99 

Things  as  well  as  persons  are  under  the  jurisdiction  of 
the  state  within  whose  territory  they  are  found.  The  most 
important  of  them  is  real  property,  which  may  RUies  relating  to 
be  roughly  said  to  consist  of  houses  and  lands,  thS^S  the 
and  immovables  generally.  For  all  purposes  of  territory, 
testamentary  and  intestate  succession,  of  contracts  and  of 
legal  proceedings,  the  law  of  the  country  where  it  is  situated, 
the  lex  loci  rei  sitce,  applies  to  it.1  As  to  personal  property 
or  movables,  the  principles  of  territoriality,  domicile  or  na- 
tionality may  be  applied.  In  the  vast  majority  of  cases  the 
first  two  would  produce  the  same  result,  since  a  man  gener- 
ally resides  where  his  goods  are  to  be  found.  But,  as  we 
have  just  seen,  the  principle  of  nationality  is  generally  pre- 
ferred, except  in  Great  Britain  and  the  United  States,  where 
the  principle  of  domicile  rules.  There  is  one  sort  of  movable 
of  so  important  and  exceptional  a  kind,  that  International 
Law  sets  it  as  it  were  in  a  class  by  itself,  and  applies  special 
rules  to  it.  We  refer  to  ships.  A  state's  authority  over  its 
own  ships,  both  public  and  private,  in  its  waters  is  absolute. 
Its  jurisdiction  extends  to  their  crews  also.  Those  of  public 
vessels,  being  in  the  service  of  the  state,  are,  of  course,  wholly 
and  entirely  under  its  control ;  those  of  merchant  vessels 
come  within  the  territorial  jurisdiction,  even  as  regards 
seamen  of  foreign  nationality.  Foreign  merchant  vessels 
within  the  ports  and  territorial  waters  of  a  state  are  subject 
to  the  local  law  and  the  local  jurisdiction.  By  coming 
within  the  waters  of  a  friendly  power  they  put  themselves 
for  the  time  being  under  the  authority  of  that  power. 
All  criminal  acts  done  on  board  them  are  justiciable  by  its 
tribunals,  the  ministers  of  its  justice  have  full  power  to 
enter  them  and  make  arrests,  and  the  crews  are  subject  to 
the  local  law  when  on  board  their  vessels  as  well  as  when  on 

1  Philliinore,  Commentaries,  vol.  IV,  ch.  xxviii ;    Bar,  Private  Interna- 
tional Law,  §  220. 


226 

shore.  This  proposition  follows  necessarily  from  the  concep- 
tion of  territorial  sovereignty,  as  was  clearly  seen  by  Mr. 
Marcy  when,  as  American  secretary  of  state  in  1855,  he 
wrote  to  Mr.  Clay,  "  As  a  general  rule  the  jurisdiction  of  a 
state  is  exclusive  and  absolute  within  its  own  territories,  of 
which  harbors  and  territorial  waters  are  as  clearly  a  part  as 
the  land."1  The  case  of  the  Franconia  has  sometimes  been 
cited  as  establishing  the  contrary  doctrine ;  but  in  reality  it 
did  nothing  of  the  kind.  The  vessel  was  a  German  mer- 
chantman which,  in  1876,  ran  into  and  sank  the  Strathclyde, 
a  British  ship,  within  three  miles  of  the  shore  at  Dover. 
Her  master  was  tried  for  the  manslaughter  of  a  passenger 
on  board  the  latter  vessel,  who  was  drowned  in  consequence 
of  the  collision.  But  a  strong  bench  of  thirteen  English 
judges  decided  by  seven  to  six  that  no  British  court  had 
jurisdiction  over  a  crime  committed  by  foreigners  on  board 
a  foreign  ship  when  it  was  passing  within  three  miles  of  a 
British  coast.  The  ground  of  this  decision  was  that  such 
jurisdiction  had  never  been  claimed  by  any  English  king, 
and  was  not  conferred  by  any  English  law.  And  it  was 
further  ruled  that  it  could  not  be  exercised  unless  it  had 
been  so  conferred.  It  was  not  seriously  disputed  that  by 
International  Law  any  state  that  chose  could,  without  of- 
fence to  other  states,  assume  jurisdiction  within  three  marine 
miles  of  its  coast  line.  And,  indeed,  when  Parliament,  in 
1878,  passed  an  act  called  the  Territorial  Waters  Juris- 
diction Act,  declaring  that  the  rightful  jurisdiction  of  the 
British  Crown  extended  over  the  marine  league,  no  pro- 
test was  made  by  any  foreign  power.2  France,  however, 
draws  a  distinction  between  two  classes  of  acts  done  on 
board  a  foreign  merchant  ship  in  one  of  her  ports.  If  the 
act  concerns  members  of  the  crew  only  and  does  not  take 
effect  outside  the  vessel,  she  exercises  no  jurisdiction  over  it. 
If  it  concerns  members  of  the  crew  and  other  individuals,  or 

1  Moore,  International  Law  Digest,  vol.  II,  p.  275. 

2  Stephen,  History  of  the  Criminal  Law  of  England,  vol.  II,  pp.  29-32. 


CONNECTED   WITH  JURISDICTION  227 

takes  effect  outside  the  vessel  to  the  danger  of  the  peace  or 
health  of  the  port,  she  will  take  cognizance  of  it.  It  is  some- 
times claimed  that  this  rule  is  International  Law ;  but  it  is 
not  based  upon  general  or  long-continued  usage,  nor  is  it  a 
logical  deduction  from  any  universally  admitted  principle. 
On  the  contrary,  it  restricts  in  some  measure  the  application 
of  the  fundamental  principle  of  territorial  sovereignty.  Yet 
it  has  many  recommendations.  It  limits  the  sphere  of  local 
authority  to  the  necessities  of  local  security,  and  leaves  the 
interior  discipline  and  economy  of  the  vessel  to  be  regulated 
by  the  laws  of  its  own  country,  thus  giving  effect  to  the 
jurisdiction  of  each  state  in  the  sphere  which  seems  natur- 
ally and  properly  to  belong  to  it.  The  French  rule  or  a 
modification  of  it  has  been  received  with  much  favor  in 
recent  times.  Some  states  have  refused  to  exercise  author- 
ity over  foreign  merchantmen  in  their  ports  in  cases  where 
nothing  beyond  the  internal  economy  of  the  vessel  was  con- 
cerned, and  many  treaties  have  been  negotiated  in  which  the 
contracting  parties  bind  themselves  not  to  interfere  on  board 
one  another's  vessels  in  their  ports,  unless  the  peace  or  safety 
of  the  neighborhood  is  threatened  or  some  person  other  than 
a  member  of  the  crew  is  concerned.  Thus,  for  instance,  in 
1866  the  United  States  refused  to  compel  the  seamen  on 
board  a  British  merchant  ship  in  American  territorial  waters 
to  perform  their  duties  as  mariners,1  and  in  1870  they  entered 
into  a  Consular  Convention  with  Austria,  followed  the  next 
year  by  one  with  the  German  Empire,  in  each  of  which  was 
embodied  the  rule  above  described,  with  the  further  proviso 
that  "  consuls,  vice-consuls,  or  consular  agents  shall  have 
exclusive  charge  of  the  internal  order  of  the  merchant  ves- 
sels of  their  nation."2  There  is  no  difficulty  in  carrying  out 
these  provisions;  nor  does  a  state  leave  the  door  open  to 
confusion  and  anarchy  by  refusing  to  exercise  jurisdiction 
in  certain  cases  over  foreign  merchant  vessels  in  her  ports. 

iWharton,  International  Law  of  the  United  States,  §  35. 
2  Treaties  of  the  United  States,  pp.  34,  366,  367. 


228  EIGHTS   AND   OBLIGATIONS 

The  principle  of  territorial  sovereignty  and  territorial  juris- 
diction overrides  that  of  the  authority  of  a  state  over  its 
merchantmen,  when  the  two  conflict.  But  if  the  former  is 
not  enforced  the  latter  at  once  revives,  and  the  vessels  and 
crews  come  under  the  laws  of  their  own  country  to  the  exact 
extent  of  their  exemption  from  the  laws  of  the  country  in 
whose  waters  they  are  staying.  It  is  quite  possible  that 
French  practice  may  in  time  become  a  rule  of  International 
Law.  At  present  its  application  has  to  be  secured  by  special 
treaty  stipulations. 

§100 

The  second  of  our  fundamental  rules   on  the  subject  of 
jurisdiction  is  that  A  STATE  HAS  JURISDICTION  OVER  ALL 

A  state  h»»  juris-    ITS    SHIPS    ON   THE    HlGH    SEAS.       For   no   pur- 

SsononOVteheahigh  P°se  can  the  complete  jurisdiction  of  a  state 
8eas-  over  its  public  vessels  on  the  high  seas  be  over- 

ridden or  qualified  by  any  exercise  of  authority  on  the  part 
of  another  state.  Even  the  right  of  search  does  not  apply 
to  them;  and  while  the  merchant  vessels  of  neutrals  must 
submit  to  be  overhauled  by  the  cruisers  of  both  belligerents, 
their  men-of-war  are  as  free  from  molestation  as  they  would 
be  in  time  of  profound  peace.  So  absolute  are  the  rights  of 
a  state  over  its  public  ships  that  some  writers  have  sought 
to  account  for  them  by  the  statement  that  such  vessels  are 
floating  portions  of  the  territory  of  the  state  to  which  they 
belong.1  Obviously  this  is  a  fiction;  but  under  the  name  of 
the  principle  of  exterritoriality  it  has  been  made  the  basis  of 
much  elaborate  reasoning,  and  has  been  very  influential  in 
the  development  of  theories  of  immunity  from  territorial 
jurisdiction.  We  shall  meet  it  again  in  connection  with 
other  subjects.  Here  it  is  sufficient  to  say  that  the  position 
accorded  by  International  Law  to  public  vessels  rests  upon 
considerations  of  convenience  and  utility  and  receives  ample 
support  from  the  practice  of  civilized  states.  There  is  no 
1  E.g.  Hautefeuille,  Droits  des  Nations  Nevtres,  vol.  I,  pp.  263-255. 


CONNECTED   WITH  JURISDICTION  229 

need  to  invent  a  fiction  in  order  to  account  for  it,  when  we 
remember  that  a  public  vessel  is  in  the  service  of  the 
government  of  the  country  to  which  she  belongs,  and  that  to 
allow  any  other  authority  to  detain  her  upon  the  high  seas 
would  be  to  derogate  from  its  sovereignty  and  interfere  with 
the  due  performance  of  its  orders.  Moreover  the  fiction  is 
mischievous  as  well  as  unnecessary.  It  proves  a  great  deal 
too  much;  for  if  a  ship-of-war  were  really  a  portion  of  the 
territory  of  the  state  that  owns  her,  the  health  laws  and 
port  regulations  of  any  other  state  could  under  no  circum- 
stances be  applied  to  her,  whereas  we  shall  see,  when  we 
come  to  consider  the  immunities  of  public  vessels  in  foreign 
ports,1  that  local  regulations  about  such  matters  must  be 
obeyed. 

With  regard  to  merchant  vessels  on  the  high  seas,  Inter- 
national Law  lays  down  that  each  state  exercises  jurisdiction 
over  its  own,  and  possesses  no  authority  over  those  of  other 
nations,  except  that  in  time  of  war  its  cruisers  may  search 
them  and  capture  any  whose  proceedings  justify  seizure. 
Jurisdiction  over  the  vessels  involves  jurisdiction  over  all 
persons  and  things  on  board,  including  foreigners,  whether 
seamen  or  passengers.  And  this  power  carries  with  it  a 
corresponding  responsibility.  A  state  is  bound  to  give 
redress  in  its  courts  for  wrongful  acts  done  on  board  its 
merchant  vessels  on  the  high  seas  against  foreigners,  and  is 
responsible  for  the  acts  of  any  such  ship  if  it  does  what  is 
illegal  by  International  Law,  except  in  the  case  of  piracy 
which  is  justiciable  by  every  state,  and  of  those  offences 
against  neutrality  which  belligerents  are  permitted  to  deal 
with  themselves. 

The  question  of  a  state's  exclusive  jurisdiction  over  its 
merchant  vessels  was  involved  in  the  quarrel  between  Great 
Britain  and  the  United  States  at  the  beginning  of  the  nine- 
teenth century.  It  arose  out  of  the  claim  of  the  former  to 
take  British  seamen  from  American  vessels  on  the  high  seas 

i  See  §  107. 


230  RIGHTS   AND  OBLIGATIONS 

and  impress  them  for  the  royal  navy,  as  an  incident  of  the 
belligerent  right  of  searching  neutral  ships.  The  matter  was 
complicated  by  a  dispute  concerning  the  doctrine  of  inalien- 
able allegiance;  for  some  of  the  seamen  forcibly  taken  were 
naturalized  American  citizens,  whom  the  British  Government 
regarded  as  still  possessed  of  their  original  nationality.1  The 
main  point  at  issue,  however,  was  whether  one  state  had  a 
right  to  execute  its  laws  within  the  merchantmen  of  another 
engaged  in  navigating  the  open  ocean.  To  this  all  other 
questions  were  subsidiary.  Side  issues  arose,  such  as  the 
pressing  need  of  Great  Britain  for  seamen,  her  right  to  call 
upon  all  her  subjects  for  aid  in  the  great  struggle  with  Napo- 
leon, the  provocative  conduct  of  some  American  skippers 
who  hovered  outside  British  ports  and  made  their  vessels 
places  of  refuge  for  British  deserters,  the  extent  of  the 
right  of  search,  and  the  theory  of  the  indelible  character  of 
citizenship;  but  the  kernel  of  the  controversy  was  the  question 
of  jurisdiction.  There  can  be  no  doubt  that  Great  Britain 
was  wrong.  Her  claim  was  in  direct  conflict  with  admitted 
principle.2  It  led  to  the  War  of  1812  between  the  two  kin- 
dred nations;  but  the  Treaty  of  Ghent,  which  closed  the 
struggle  in  1814,  was  silent  as  to  the  matter  in  dispute. 
After  the  great  European  peace  of  1815  Great  Britain  gave 
up  the  practice  of  impressing  seamen  for  her  navy,  and  thus 
incidentally  removed  all  chance  of  a  renewal  of  the  conflict. 
In  1842  Mr.  Webster  declared  in  his  correspondence  with 
Lord  Ashburton  that  the  United  States  would  not  in  future 
allow  seamen  to  be  impressed  from  American  vessels.  The 
claim  of  right  has  never  been  formally  abandoned  by  the 
British  Government;  but  modern  English  writers  regard  it 
as  indefensible,  and  it  is  not  likely  to  be  revived.3 

1  See  §  96. 

2  Phillimore,  Commentaries,  part  III,  ch.  xviii. 

8  Moore,  International  Law  Digest,  vol.  II,  pp.  987-1001 ;  Wheaton, 
History  of  the  Law  of  Nations,  part  IV,  §  36. 


CONNECTED   WITH   JURISDICTION  231 

§101 

Our  third  fundamental  rule  is  that  A  STATE  HAS  LIMITED 
JURISDICTION  OVER  ITS  SUBJECTS  ABROAD.  This  jurisdic- 
tion is  personal,  and  cannot  as  a  rule  be  enforced 

-1  A  state  has  juris- 

unless  the  subjects  in  question  come  within  the  diction  over  its 

.,       .    ,  ...  .     ,.    ,.  e    ,,  subjects  abroad. 

territorial  or  maritime  jurisdiction  01  the  state 
to  which  they  belong.  In  virtue  of  the  tie  of  allegiance  a 
subject  of  a  state  that  makes  military  service  obligatory  is 
bound  to  return  from  abroad  in  order  to  perform  it,  especially 
if  his  fatherland  is  at  war.1  Again,  all  civilized  powers  re- 
gard as  punishable  at  home  grave  political  offences  against 
themselves  committed  by  their  subjects  while  resident 
abroad;  and  sometimes  the  more  heinous  crimes  are  looked 
upon  in  the  same  way,  if  they  have  not  been  already  dealt 
with  by  the  state  in  whose  territory  they  took  place,  and  if 
the  criminals  are  not  subject  to  extradition.  Crimes  com- 
mitted by  subjects  on  board  foreign  vessels  are  placed  in  the 
same  category  with  crimes  committed  on  foreign  territory.2 
The  jurisdiction  claimed  in  these  cases  is  a  mixture  of  the 
personal  and  the  territorial.  It  is  personal  in  that  the 
authority  to  take  notice  of  the  act  and  regard  it  as  a  crime 
is  derived  from  the  personal  tie  of  allegiance  subsisting  be- 
tween the  doer  and  the  state.  It  is  territorial  in  that  no  ar- 
rest can  be  made  or  punishment  inflicted  until  the  offender 
has  come  within  the  state's  territory  or  on  board  one  of  its 
vessels,  unless  indeed  he  has  property  within  the  jurisdiction, 
in  which  case  it  can  be  confiscated  or  made  to  satisfy  pecuni- 
ary claims.  Instances  of  purely  personal  jurisdiction  are  to 
be  found  when  a  state  authorizes  the  establishment  of  a 
magistracy  in  barbarous  districts  bordering  on  its  possessions 
but  neither  owned  nor  protected  by  any  civilized  power. 
Great  Britain  has  done  this  by  a  series  of  statutes,  beginning 
with  the  Foreign  Jurisdiction  Act  of  1843  and  ending  with 

1Despagnet,  Droit  International  Public,  p.  352. 
»  Westlake,  International  Law,  part  I,  p.  208. 


232  RIGHTS    AND   OBLIGATIONS 

the  Foreign  Jurisdiction  Act  of  1890.1  Magistrates  appointed 
under  the  provisions  of  Orders  in  Council  issued  in  accord- 
ance with  these  acts  have  a  personal  jurisdiction  over  subjects 
of  the  state  who  may  be  in  the  district  assigned  to  them,  but 
they  can  have  no  jurisdiction  over  others  except  by  consent, 
seeing  that  they  can  claim  no  territorial  authority.  They 
are  simply  sent  out  into  the  wilderness  to  see  that  their  fel- 
low-citizens behave  with  a  reasonable  amount  of  propriety. 
Their  authority  is  an  emanation  from  the  personal  jurisdic- 
tion of  the  state  over  all  its  subjects  wherever  they  may  be  ; 
and  it  is  capable  of  exercise  in  places  outside  the  dominions 
or  colonial  protectorates  of  any  civilized  power,  because  no 
territorial  jurisdiction  exists  there  to  override  it.  A  good 
example  of  the  assumption  of  such  authority  is  to  be  found 
in  the  British  Order  in  Council  of  August  13, 1877,  whereby 
Great  Britain  set  up  courts  having  jurisdiction  over  her  sub- 
jects in  a  large  number  of  places  and  islands  in  the  Western 
Pacific,  "  the  same  not  being  within  her  Majesty's  dominions 
and  not  being  within  the  jurisdiction  of  any  civilized  power." 
But  foreigners  were  not  to  come  under  the  jurisdiction  thus 
assumed  unless  they  filed  in  court  a  written  consent  obtained 
from  the  competent  authorities  of  their  own  nation.2 

§102 

"We  now  come  to  the  fourth  and  last  of  our  fundamental 
rules.     It  is  that  A  STATE  HAS  JURISDICTION  OVER  ALL 

A  state  has  juris-      PlRATES    SEIZED    BY    ITS    VESSELS.       Piracy    is 

pirate"  sri^d  by  an  offence  against  the  whole  body  of  civilized 
states,  not  against  any  particular  one  of  them. 
It  is  a  crime  by  International  Law  which  describes  its 
nature  and  provides  that  the  death-penalty  may  be  inflicted 
upon  those  who  are  guilty  of  it.  The  best  definition  of  it 
is  «'  any  armed  violence  at  sea  which  is  not  a  lawful  act  of 

1  Nys,  Droit  International,  vol.  II,  pp.  262,  263. 
"Hertslet,  Treaties,  vol.  XIV,  871-909. 


CONNECTED   WITH   JURISDICTION  233 

war."1  It  is  invariably  connected  with  the  sea,  which  is 
under  no  territorial  jurisdiction,  and  it  is  justiciable  by  any 
state  whose  cruisers  can  capture  those  who  are  guilty  of  it. 
An  act  to  be  piratical  must  be  an  act  of  violence  adequate  in 
degree;  but  it  need  not  necessarily  be  an  act  of  depredation. 
Generally  a  pirate  is  merely  a  robber  of  the  vulgarest  and 
cruelest  kind  ;  but  there  have  been  cases  in  which  acts  done 
by  unauthorized  persons  for  political  ends  have  been  regarded 
as  piratical,  though  the  animus  furandi  was  wanting  and 
there  was  no  thought  of  indiscriminate  aggression  upon  ves- 
sels of  all  nations.  A  single  act  of  violence  will  suffice, 
such,  for  instance,  as  the  successful  revolt  of  the  crew  of  a 
vessel  against  their  officers.  If  they  take  the  ship  out  of 
the  hands  of  the  lawful  authorities,  they  become  pirates, 
though  if  their  attempt  fails  and  lawful  authority  is  never 
superseded  on  board,  they  are  guilty  of  mutiny  and  not 
piracy.  Another  mark  of  a  piratical  act  is  that  it  must  be 
an  act  done  outside  the  territorial  jurisdiction  of  any  civilized 
state.  Piracy  must  always  be  connected  with  the  sea,  but 
it  may  be  committed  by  descent  from  the  sea  as  well  as  ac- 
tually upon  it.  Landing  on  an  unappropriated  island  and 
robbing  civilized  people  who  had  been  cast  ashore  there,  or 
were  engaged  in  trade  or  missionary  work  among  the 
natives,  would  be  piracy  if  done  by  the  crew  of  an  unauthor- 
ized sea  rover.  Hall  seems  to  hold  that  a  descent  from  the 
sea  on  the  coast  of  a  civilized  state  to  rob  and  destroy  with- 
out any  national  authorization  would  be  accounted  a  pirati- 
cal act;  2  but  surely  the  fact  that  the  crime  was  committed 
within  territorial  jurisdiction  would  make  the  perpetrators 
amenable  to  the  law  of  the  state,  not  to  the  provisions  of  the 
international  code.  If  the  state  were  so  weak,  or  its  agents 
so  remote,  that  the  authors  of  the  outrage  were  likely  to  es- 
cape unharmed,  their  seizure  by  the  forces  of  another  state 
which  happened  to  be  on  or  near  the  spot  would  be  an  act 

1  Kenny,  Outlines  of  Criminal  Law,  p.  316. 
2 International  Law,  5th  ed.,  pp.  260,  261. 


234  EIGHTS  AND  OBLIGATIONS 

of  comity,  and  therefore  deserving  of  gratitude  and  thanks, 
though  a  legal  question  might  arise  as  to  whether  they  should 
be  tried  and  punished  by  the  captors'  authorities  or  by  those 
of  the  state  within  which  the  unlawful  acts  were  done.  In 
any  case  the  original  act  which  made  the  vessel  into  a 
pirate  must  have  been  committed  on  the  high  seas.  If  it 
were  done  within  the  territory  or  territorial  waters  of  any 
power,  it  would  come  under  the  exclusive  jurisdiction  of  that 
power,  and  could  not  be  what  piracy  is,  an  offence  against 
the  whole  body  of  civilized  states.  The  last  mark  of  a  pirati- 
cal act  is  that  it  must  be  an  act  the  perpetrators  of  which  are 
destitute  of  authorization  from  any  recognized  political  com- 
munity. Acts  which  when  done  under  national  authoriza- 
tion are  lawful  hostilities,  are  piracy  when  done  without  such 
authorization;  and  the  presence  of  two  or  more  incompatible 
authorizations  is  deemed  to  have  the  same  effect  as  the  ab- 
sence of  any.  Thus  if  in  time  of  war  a  vessel  obtains  a  com- 
mission from  each  belligerent  and  depredates  impartially 
upon  the  commerce  of  both,  she  is  a  pirate.  But  a  cruiser 
which,  having  a  lawful  commission,  or  being  deemed  by  her 
government  to  have  one,  makes  captures  not  authorized  by 
the  laws  of  war,  is  no  pirate  ;  for  she  has  not  thrown  off 
national  authority,  and  the  state  that  owns  her  is  respon- 
sible for  her  misdeeds.  Thus  when  in  1904  the  Russian 
cruiser  Peterburg  made  prize  of  the  British  steamer  Malacca 
in  the  Red  Sea,  Great  Britain  demanded  and  obtained  from 
Russia  the  release  of  the  captured  vessel.  But  she  made  no 
attack  on  the  captor,  though  she  held  that,  having  passed  the 
Dardanelles  and  the  Bosphorus  as  a  merchantman,  it  was 
not  entitled  to  make  seizures  as  a  ship-of-war  in  the  Red  Sea 
or  elsewhere.1  A  commission  from  a  community  which  has 
received  recognition  of  belligerency  but  not  recognition  of 
independence  is  sufficient  authorization  for  such  acts  of 
violence  as  are  allowed  to  belligerent  cruisers.  But  if  the 

1  Lawrence,  War  and  Neutrality  in  the  Far  East,  2d  ed.,pp.  205-209, 
213-215. 


CONNECTED   WITH   JURISDICTION  235 

community  fails  in  its  struggle  and  ceases  to  exist  as  a  sepa- 
rate political  unit,  its  commissions  are  no  longer  valid,  and 
acts  done  under  cover  of  them  become  piratical  because  they 
are  unauthorized.  These  points  were  well  illustrated  by  the 
career  of  the  Confederate  cruiser  Shenandoah  at  the  close  of 
the  great  American  civil  war.  She  was  in  the  Antarctic 
seas  when  Richmond  fell  and  the  Confederacy  came  to  an 
end  in  the  spring  of  1865.  Through  the  summer  she  con- 
tinued to  make  depredations  on  American  vessels  around 
Cape  Horn.  But  when  her  captain  gave  up  his  ship  to  the 
port  authorities  at  Liverpool  in  November,  he  asserted  that 
he  was  ignorant  of  the  extinction  of  his  government  till 
August  2,  and  that  as  soon  as  he  obtained  the  news  he 
desisted  from  further  hostilities.  The  British  Government 
believed  his  story  and  allowed  him  and  his  crew  to  go  free, 
while  the  vessel  was  given  up  to  the  United  States.1  There 
was  some  doubt  at  the  time  with  regard  to  the  facts,  but 
none  as  to  the  law.  Had  it  been  clear  that  captures  were 
made  with  full  knowledge  of  the  downfall  of  the  Con- 
federacy, the  Shenandoah  would  certainly  have  been  a 
pirate. 

It  has  been  argued  that  even  though  a  revolted  political 
community  has  not  obtained  recognition  of  belligerency,  its 
commissions  must  be  held  to  protect  those  who  act  under 
them  at  sea  from  the  charge  of  being  pirates.2  But  the  case 
of  the  Huasear  seems  to  point  to  the  opposite  conclusion. 
In  1877  this  vessel,  whose  after  career  was  to  be  so  check- 
ered and  glorious,  revolted  from  the  government  of  Peru, 
and  while  on  a  short  voyage  stopped  two  British  vessels  on 
the  high  seas  and  took  coals  from  one  and  Peruvian  officials 
from  the  other.  There  was  no  political  organization  at  her 
back,  no  provisional  government  to  give  her  a  commission ; 
no  territory  was  in  insurrection ;  no  other  ship  even  took  up 

1  British  Parliamentary  papers,  British  Case  presented  to  the  Geneva  Arbi- 
trators, pp.  166-160. 

2  Hall,  International  Law,  5th  ed.,  pp.  259-260. 


236  EIGHTS   AND   OBLIGATIONS 

her  cause.  She  was  solitary  in  her  movement ;  and  the 
Peruvian  Government  disclaimed  responsibility  for  her  acts. 
Under  such  circumstances  recognition  of  belligerency  was 
out  of  the  question,  and  the  Huascar  could  only  be  regarded 
as  an  unauthorized  rover  of  the  seas.  The  English  admiral 
on  the  Pacific  station  declared  that  she  was  a  pirate,  at  least 
as  far  as  British  subjects  and  property  were  concerned.  He 
endeavored  to  capture  her,  but  failed;  and  the  vessel  sur- 
rendered to  a  Peruvian  squadron.  The  British  Government 
approved  the  conduct  of  Admiral  de  Horsey  in  the  face  of 
a  remonstrance  from  Peru  and  a  debate  raised  by  the  opposi- 
tion in  the  House  of  Commons.1  But  it  would  have  been 
possible  for  him  to  have  justified  his  proceedings  against  the 
Huascar  without  raising  the  question  of  piracy.  Such  a 
vessel  might  be  prevented  by  force  from  interference  with 
the  trade  of  third  parties,  and  yet  be  free  from  attack  as 
long  as  she  did  not  molest  them,  whereas  an  ordinary  pirate 
would  be  attacked  by  any  cruiser  who  felt  herself  strong 
enough  to  make  the  capture.  Thus  in  1898,  when  the 
greater  part  of  the  Brazilian  fleet  rebelled  under  Admiral  de 
Mello,  and  kept  up  in  the  inner  harbor  of  Rio  de  Janeiro  an 
artillery  duel  with  the  forts  and  batteries  which  remained 
faithful  to  the  government,  the  commanders  of  the  British, 
American,  French,  Italian,  and  Portuguese  naval  forces  on 
the  spot  informed  its  chief  that  they  would  not  suffer  him  to 
perform  acts  of  war  against  the  trade  of  their  compatriots, 
or  endanger  the  lives  and  property  of  their  countrymen  by 
firing  on  the  commercial  and  residential  quarters  of  the  city. 
As  long  as  these  conditions  were  observed  they  left  him  free 
to  conduct  his  operations  as  he  pleased;  but,  when  some 
time  afterwards  an  American  boat  was  fired  on  by  an  in- 
surgent vessel,  the  American  commander,  Admiral  Benham, 
returned  the  fire  from  the  Detroit.  This  case,  and  others  of 
a  similar  kind,  point  to  the  existence  of  a  condition  midway 

1  British  Parliamentary  Papers,  Peru,  No.  1  (1887)  ;  Hansard,  3d  Series, 
vol.  CCXXXVI,  pp.  787-802. 


CONNECTED   WITH   JURISDICTION  237 

between  belligerency  and  piracy,  which  it  would  be  advisable 
to  recognize  under  the  name  of  insurgency.1 

§103 

We   must   now   distinguish  between  piracy  jure  gentium 
which    has   just    been    described,  and    offences   which   are 
designated  as  piracy  by  municipal  law  and  by  Distinction  be- 
municipal  law  only.     Each  state  by  virtue  of  SSBSJL 
its  independence  can  regulate  its  criminal  code  and  P'lT, by 

municipal  law. 

in  the  way  that  seems  best  to  it;  and  if  it  The  slave  trade, 
chooses  in  the  exercise  of  its  discretion  to  regard  as  piracy 
certain  offences  which  are  not  so  regarded  by  International 
Law,  it  is  acting  within  its  rights.  Such  laws  bind  the  tri- 
bunals of  the  state  that  makes  them  and  have  coercive 
force  within  its  jurisdiction,  but  no  further.  Even  if  the 
laws  of  other  countries  contain  similar  provisions,  each 
law  can  take  effect  only  within  the  sphere  of  the  authority 
that  sets  it.  Without  special  agreement  among  states, 
none  can  arrest  or  punish  subjects  of  the  others  for  offences 
committed  outside  its  own  jurisdiction,  even  though  they  are 
regarded  as  offences  by  the  law  of  the  state  to  which  the 
offender  belongs.  This  is  so  clear  that  no  attempt  has  been 
made  to  assume  a  kind  of  international  jurisdiction  over  acts 
declared  to  be  piracy  by  municipal  law,  except  in  the  one 
case  of  the  slave  trade.  In  her  zeal  for  its  suppression  Great 
Britain,  during  the  first  half  of  the  nineteenth  century,  in- 
structed her  cruisers  to  stop  and  search  vessels  of  all  nations 
suspected  of  being  engaged  in  it.  But  her  claim  to  have  the 
right  to  do  so  was  vigorously  challenged,  especially  by  the 
United  States ;  and  in  1858  it  was  abandoned  on  the  advice 
of  the  law  officers  of  the  Crown.2  There  can  be  no  doubt 
that,  agreement  apart,  no  right  of  search  exists  in  time  of 

1  Professor  G.  G.   Wilson,  Insurgency ;  Lawrence,  Recognition  of  Bel- 
ligerency, in  Journal  of  Royal  United  Service  Institution,  January,  1897. 
*  Moore,  International  Law  Digest,  vol.  II,  pp.  914-945. 


238  RIGHTS  AND   OBLIGATIONS 

peace  even  for  such  an  excellent  purpose  as  the  suppression 
of  the  slave  trade.  If  states  had  accepted  the  American 
proposal  of  1823  that  the  slave  trade  should  be  made  into 
piracy  jure  gentium  by  common  consent,  any  cruiser  of  any 
civilized  power  might  have  stopped  on  the  high  seas  any  ship 
suspected  of  being  a  slaver.  Such  cruiser  would,  of  course, 
act  at  her  own  risk,  in  the  sense  that  if  the  vessel  turned  out 
to  be  innocent,  apology  and  satisfaction  would  be  due,  unless 
her  conduct  was  so  foolish  as  naturally  to  draw  suspicion  on 
her.1  But  as  the  suggestion  failed  to  obtain  general  favor, 
the  alternative  course  for  those  states  who  desired  to  put 
down  the  traffic  was  to  adopt  the  British  policy  of  entering 
into  treaty  engagements  with  other  powers  for  the  concession 
of  a  mutual  right  of  search,  so  that  cruisers  of  one  party 
might  have  the  right  to  stop,  examine,  and  if  necessary  seize 
and  bring  in  for  trial,  merchantmen  of  the  other  suspected  of 
being  slavers.  But  considerations  of  the  sanctity  of  the  flag 
as  the  emblem  of  the  national  sovereignty,  and  a  feeling  that 
the  right  of  search  was  in  its  nature  odious  and  should  be 
kept  within  the  strictest  limits,  often  prevailed  over  the 
interests  of  humanity  ;  and  Great  Britain  had  great  difficulty 
in  securing  the  general  recognition  of  her  views.  The  aboli- 
tion of  slavery  in  the  various  American  states  has  put  an 
end  to  the  West  African  slave  trade ;  but  the  traffic  still  ex- 
ists on  the  east  coast  of  Africa,  though  it  is  beginning  to 
feel  the  effect  of  the  vigorous  measures  taken  in  late  years  to 
suppress  it.  The  last  and  most  far-reaching  of  these  is  the 
great  International  Convention  of  1890,  which  was  the 
Final  Act  of  a  Conference  of  representatives  of  all  civilized 
powers  called  by  Belgium  at  the  suggestion  of  Great  Britain.2 
Difficulties  arose  with  regard  to  its  ratification.  The  French 
legislature  demurred  owing  to  the  modified  right  of  search 
granted  by  it,  and  the  Senate  of  the  United  States  took  the 
ground  that  it  did  not  wish  America  to  be  mixed  up  in 

1  See  the  Marianna  Flora,  Wheaton,  Reports  of  U.S.  Supreme  Court, 
vol.  XI,  p  1.  2  British  Parliamentary  Papers,  Africa,  No.  7  (1890). 


CONNECTED   WITH  JURISDICTION  239 

European  and  African  arrangements.  But  the  various  objec- 
tions have  been  overcome  or  reserved  for  future  settlement. 
France  ratified  in  January,  1892,  on  the  understanding  that 
the  maritime  measures  were  subject  to  ulterior  modification ; 
and  the  Senate  of  the  United  States  sanctioned  the  agree- 
ment in  February  of  the  same  year,  appending  to  its  formal 
ratification  a  declaration  that  it  did  not  thereby  express 
approval  of  the  protectorates  and  other  territorial  arrange- 
ments referred  to  in  the  clauses.  By  the  middle  of  1892  the 
Convention  had  received  the  formal  assent  of  the  civilized 
world.1 

This  important  international  agreement  attacks  the  evil 
on  land  as  well  as  at  sea,  and  thus  marks  a  new  epoch  in 
the  history  of  the  attempts  to  destroy  the  slave  trade.  It 
is  a  most  elaborate  document,  divided  into  chapters  and  sec- 
tions, and  a  large  part  of  it  would  have  been  impossible  had 
not  the  interior  of  Africa  been  opened  to  the  influence,  and 
in  some  degree  to  the  dominion,  of  civilized  powers.  We 
can  give  but  a  very  brief  outline  of  its  provisions.  It  stipu- 
lates for  measures  of  repression,  to  be  carried  out  by  each  of 
the  signatory  powers,  in  the  African  territory  over  which  it 
possesses  either  sovereignty  or  a  protectorate.  Stations  and 
fortified  ports  are  to  be  established  from  time  to  time  as  the 
country  is  opened  up,  and  armed  cruisers  are  to  be  placed 
on  inland  lakes  and  navigable  waters.  The  importation  and 
sale  of  firearms  and  ammunition  is  to  be  put  under  stringent 
restrictions  in  a  zone  extending  over  the  greater  part  of  the 
continent  and  including  the  islands  within  a  hundred  miles 
of  the  coast.  Within  this  zone  the  traffic  in  intoxicating 
liquors  is  to  be  prohibited  or  severely  restricted.  Such  of 
the  signatory  powers  as  allow  domestic  slavery  are  to  pro- 
hibit the  importation  into  their  territories  of  African  slaves. 
A  great  international  information  office  is  to  be  established 
at  Zanzibar,  with  branches  at  other  African  ports  :  and  in 

1  British  Parliamentary  Papers,  Treaty  Series,  No.  7  (1892);  Moore,  Inter- 
national Law  Digest,\o\.  II,  pp.  948-951. 


240  RIGHTS   AND   OBLIGATIONS 

it  are  to  be  concentrated  documents  of  all  kinds  with  regard 
to  the  progress  of  the  work  of  exterminating  the  slave  trade 
under  the  Convention,  while  by  means  of  it  a  constant  inter- 
change of  information  is  to  take  place  between  the  powers 
concerned.  With  regard  to  measures  of  repression  con- 
nected with  the  sea,  a  great  maritime  zone  is  created,  cov- 
ering the  western  part  of  the  Indian  Ocean  from  Madagascar 
to  the  coasts  of  Beloochistan.  Within  this  zone  a  very 
limited  right  of  search  is  granted  to  one  another  by  the 
signatory  powers.  Vessels  suspected  of  being  engaged  in 
the  traffic  are  to  be  handed  over  to  a  court  of  their  own 
country  for  trial;  and  in  case  of  condemnation  the  slaves 
are  to  be  set  at  liberty  and  the  captain  and  crew  punished 
according  to  their  offence.  Native  vessels  are  not  to  receive 
authorizations  to  carry  the  flag  of  one  of  the  contracting 
parties  for  more  than  a  year  at  a  time,  and  their  owners  must 
be  subjects  of  the  power  whose  flag  they  apply  to  carry,  and 
enjoy  a  good  character,  especially  as  regards  the  slave  trade. 
The  authorization  is  to  be  forfeited  at  once  if  acts  or  at- 
tempted acts  of  slave  trading  are  brought  home  to  the  cap- 
tain or  owner.  Lists  of  the  crew  and  of  negro  passengers 
are  to  be  delivered  at  the  port  of  departure  by  the  captain 
of  the  vessel  to  the  authority  of  the  power  whose  flag  it  car- 
ries, and  the  authority  is  to  question  both  seamen  and  pas- 
sengers as  to  the  voluntary  nature  of  their  engagement. 
These  lists  are  to  be  checked  at  the  port  of  destination  and 
at  all  ports  of  call.  Certified  copies  of  all  authorizations  and 
notices  of  the  withdrawal  of  authorizations  are  to  be  sent 
to  the  international  information  office  at  Zanzibar.  Slaves 
detained  on  board  a  native  vessel  against  their  will  can 
claim  their  liberty,  and  any  slave  taking  refuge  on  board  a 
vessel  bearing  the  flag  of  one  of  the  signatory  powers  is  to 
be  set  free.1 

There  can  be  no  doubt  that  these  provisions  have  struck 

1  Supplement  to   the  American  Journal  of  International  Law,  vol.  HI, 
pp.  29-59  ;  British  Parliamentary  Papers,  Treaty  Series,  No.  7  (1892). 


CONNECTED   WITH  JURISDICTION  241 

a  harder  blow  at  the  African  slave  trade  than  any  it  had 
previously  received.  Since  1890  wonderful  progress  has  been 
made  in  the  development  of  Eastern  and  Central  Africa, 
and  in  spite  of  the  shameful  record  of  the  Congo  Free  State 
in  the  matter  of  slavery  the  evil  has  greatly  diminished.  No 
power  can  patrol  the  whole  of  such  immense  and  still  largely 
unexplored  regions  as  have  been  appropriated  in  Africa 
by  various  European  states.  But  trade,  and  with  it  geo- 
graphical knowledge  and  power  of  control,  is  advancing  with 
great  rapidity,  and  serious  efforts  to  put  down  the  capture 
of  slaves  in  the  interior  has  followed  in  its  wake.  It  would 
be  too  great  a  strain  upon  credulity  to  be  expected  to 
believe  in  the  sincerity  of  one  or  two  of  the  contracting 
parties.  The  difficulty  of  eradicating  domestic  slavery 
from  Oriental  society  is  enormous,  and  till  the  task  has 
been  completed  the  slave  trade  will  not  entirely  cease. 
Another  barrier  to  success  is  found  in  the  hysterical  senti- 
ment that  deems  the  national  flag  dishonored  should  search 
be  made  beneath  it  by  agents  of  another  power,  even  though 
in  consequence  of  their  abstention  it  is  used  to  cover  the 
foulest  of  human  wrongs.  Probably  the  railways  built  and 
to  be  built  will  be  a  more  potent  agent  in  the  eradication 
of  the  evil  than  any  international  agreement.  They  will 
develop  legitimate  trade  ;  and  as  the  Arab  slave  hunters 
realize  that  far  more  profit  is  to  be  made  from  it  than  from 
kidnapping  their  fellow-creatures,  they  will  leave  their  cruel 
pursuit  for  other  and  more  legitimate  avocations.  In  fact 
they  have  already  done  so  to  a  very  large  extent.  But  the 
possibility  of  the  extinction  of  the  slave  trade  in  the  future 
does  not  absolve  civilized  states  from  the  duty  of  abating  it 
in  the  present.  They  are  morally  bound  to  use  all  the 
means  in  their  power  for  the  diminution  of  so  great  a  curse  ; 
and  it  is  to  be  hoped  that  the  pressure  of  enlightened  opin- 
ion will  keep  every  government  to  the  strenuous  perform- 
ance of  the  duties  it  has  undertaken  by  signing  the  great 
anti-slavery  Convention. 


242  BIGHTS   AND   OBLIGATIONS 

§104 

We  have  now  gone  through  the  general  and  admitted 
rules  as  to  a  state's  jurisdiction,  with  the  exception  of  those 
which  concern  the  powers  exercised  by  bellig- 
erents  over  neutral  individuals  to  restrain  and 
punish  violations  of  the  rules  laid  down  by  the 
mitted  abro»d.  jaw  o£  neutrality.  These  will  be  best  dis- 
cussed when  we  come  to  that  portion  of  our  subject.  But 
before  we  deal  with  the  exceptions  to  ordinary  jurisdictional 
rights,  we  must  consider  a  class  of  cases  in  which  jurisdic- 
tion is  sometimes  assumed  by  states,  though  it  is,  to  say 
the  least,  very  doubtful  whether  they  are  justified  in  doing 
so.  There  are  provisions  in  the  laws  of  many  countries 
whereby  certain  crimes  committed  by  foreigners  within 
foreign  jurisdiction  are  made  justiciable  in  their  courts. 
Thus  France,  Germany,  and  Austria  punish  foreigners  who 
have  committed  abroad  crimes  against  the  safety  of  the 
French,  German,  or  Austrian  state  ;  and  some  powers,  such 
as  Russia  and  Italy,  go  further  and  punish  offences  against 
their  individual  subjects,  such  as  murder,  arson,  and  forg- 
ery, though  committed  in  a  foreign  country  by  persons  of 
foreign  nationality.1  Of  course  the  offenders  cannot  be  tried 
and  punished  unless  they  come  within  the  territory  of  the 
aggrieved  state.  But  we  may  well  share  the  doubts  of 
Wheaton,2  Hall,3  Westlake,4  and  other  authorities  as  to  the 
existence  of  any  right  of  jurisdiction  in  such  cases.  A  state 
has  authority  over  foreigners  within  its  territory,  not  over 
foreigners  abroad.  An  attempt  to  punish  an  alien  within  the 
territory  for  an  offence  committed  before  he  came  to  it  is  an 

1  For  the  law  of  most  civilized  nations  on  this  subject,  see  the  Report 
of  the  American  Department  of  State  on  Extraterritorial  Crime  and  the 
Cutting  Case,  pp.  38-63. 

2  International  Law,  §  113. 

8  International  Law,  5th  ed.,  pp.  212-213. 

4  International  Law,  part  I,  pp.  251-253  ;   Annuaire  de  rinstitut  de 
Droit  International,  1880,  pp.  50  et  seq. 


CONNECTED   WITH   JURISDICTION  243 

attempt  to  exercise  jurisdiction  over  acts  done  in  another 
state,  and  is  thus  contrary  to  the  very  principle  of  territorial 
jurisdiction  on  which  it  is  nominally  based.  In  similar 
cases  a  state  can  punish  its  own  citizens  ;  but  its  right  to 
do  so  is  based  upon  the  personal  claim  it  has  to  their  alle- 
giance wherever  they  may  be.  There  is  no  personal  tie  in 
the  case  of  aliens  ;  and  it  may  justly  be  contended  that  any 
attempt  to  exercise  over  them  such  jurisdiction  as  we  are 
considering  would  give  good  ground  for  remonstrance  from 
the  state  of  which  they  were  subjects.  If  the  offences  in 
question  are  grave  crimes,  the  perpetrators  may  be  surren- 
dered by  extradition  to  the  authorities  of  the  country  where 
the  wrong  was  done.  If  they  are  small  matters,  there  is  no 
need  to  notice  them.  It  is  true  that  most  states  refuse  to 
extradite  political  offenders  ;  but  diplomatic  complaint  will 
usually  secure  the  exercise  on  the  part  of  a  government  of 
watchfulness  to  prevent  its  soil  being  made  the  scene  of 
conspiracies  against  the  political  institutions  of  other  coun- 
tries. In  any  case  an  occasional  failure  of  justice  is  preferable 
to  putting  the  subjects  of  every  state  at  the  mercy  of  the  law 
and  administration  of  its  neighbors.  This  view  has  been 
pressed  and  acted  upon  in  several  recent  cases,  notably  in  the 
controversy  between  the  United  States  and  Mexico  with 
regard  to  Mr.  Cutting,  who  was  arrested  and  imprisoned  in 
Mexico  in  1886  for  an  alleged  offence  committed  in  Texas 
against  a  Mexican  citizen.  The  Government  of  Washing- 
ton demanded  his  release,  which  was  granted  after  some 
delay.  From  the  vigorous  action  taken  by  the  American 
authorities  on  this  occasion,  it  is  evident  that  the  United 
States  is  deeply  committed  to  the  view  we  have  ventured 
to  enunciate.1  Great  Britain  takes  the  same  position;  but 
on  the  other  hand  the  Institute  of  International  Law  voted 
in  1883  in  favor  of  a  right  of  jurisdiction  over  foreigners 
in  respect  of  acts  done  outside  the  territory,  subject  how- 

1  Hall,   International  Law,   5th  ed.,  pp.  210-211 ;   Moore,   International 
Law  Digest,  vol.  II,  pp.  232-242. 


244  RIGHTS  AND   OBLIGATIONS 

ever  to  the  two  conditions  that  the  acts  in  question  com- 
promise the  security  and  social  order  of  the  state  that 
punishes  them,  and  are  not  liable  to  punishment  by  the  law 
of  the  country  where  they  took  place.1  These  limitations 
attenuate  the  so-called  right  considerably,  but  do  not  re- 
move the  objections  to  it  on  the  score  of  principle. 

§  105 

It  will  be  remembered  that,  when  we  claimed  for  a  state 
jurisdiction  over  all  persons  and  all  things  within  its  terri- 
tory, we  stated  that  there  were  a  few  exceptions.  We  will 
now  proceed  to  enumerate  them.  First  among  those  who 
in  a  foreign  country  are  not  subject  to  ordinary  rules  come 

Foreign  sovereigns  and  their  suites. 

When  the  head  of  a  state  is  visiting  a  foreign  country  or 
travelling  through  it  in  his  official  capacity,  not  only  must 
Exceptions  to  or-  all  the  usual  ceremonial  honors  be  rendered  to 

dinarv  rules  about    i  •          i       •    i  i   i  •          «»      .L  .L*I 

jurisdiction :  (i)  nim>  but  he  and  his  effects  are  exempt  entirely 
eMfs'and'thek  from  the  local  jurisdiction.  He  cannot  be  pro- 
sultes-  ceeded  against  civilly  or  criminally  and  his  im- 

munities in  this  respect  are  shared  by  his  attendants.  If  he 
conspires  against  the  state,  or  permits  his  suite  to  do  any  acts 
against  its  safety,  or  harbors  criminals  and  refugees  in  the 
residence  assigned  to  him,  he  may  be  requested  to  leave  the 
territory  or  in  the  last  resort,  may  be  sent  out  of  it,  but  he 
cannot  be  tried  and  punished  within  it.  He  may  not,  how- 
ever, exercise  any  jurisdiction  of  his  own  within  the  state  he 
is  visiting,  though  he  may  carry  on  his  ordinary  administra- 
tive work  with  regard  to  home  affairs.  If  any  serious  and 
urgent  cases  arise  among  his  retinue,  they  must  be  sent  home 
for  trial.  All  immunities  vanish,  should  a  sovereign  travel 
incognito  as  a  private  person;  but  he  can  at  any  time  regain 
them  by  appearing  in  his  official  character.  If  the  same  per- 

1  Tableau  General  de  Vlnstitut  de  Droit  International,  p.  100. 


CONNECTED   WITH  JURISDICTION  245 

son  should  be  both  ruler  and  ruled,  as  the  late  Duke  of 
Albany  was  sovereign  in  Saxe-Coburg-Gotha  and  subject  in 
England,  he  would  not  be  allowed  to  escape  from  any  obli- 
gations that  might  accrue  to  him  while  resident  in  the  coun- 
try in  which  he  was  subject  by  pleading  that  he  was  sovereign 
in  another  country.  Writers  have  differed  as  to  whether  the 
president  of  a  republic  is  entitled  when  abroad  to  the  same 
honors  and  immunities  as  a  monarch ;  but  the  recent  visits 
of  presidents  of  the  French  Republic  to  the  Russian  Court 
seem  to  have  settled  the  question  in  the  affirmative.1 

§  106 

Next  in  our  list  of  those  who  are  free  from  local  jurisdic- 
tion come 

Diplomatic  agents  of  foreign  states. 

When  an  accredited  representative  of  a  foreign  power  is 
residing  in  the  country  to  which  he  is  sent,  or  travelling 
through  it  or  any  other  friendly  country  on  his  _ 

<*  J  J  Exceptions  to  or- 

way  to  or  from  his  post,  he  and  his  effects  are  dinary  rules  about 

•      ll.  •       *  f  *U       !         1     •       •    A'    *•  jurisdiction :  (2) 

in  the  main  tree  trom  the  local  jurisdiction.  Diplomatic  agents 
The  members  of  his  official  suite  have  similar 
immunities;  and  the  inviolability  attached  to  the  person  of 
the  ambassador  is  held  to  extend  itself  to  his  wife  and  chil- 
dren, and  to  those  members  of  his  household  who,  though  not 
possessed  of  the  diplomatic  character,  are  necessary  for  his 
convenience  and  comfort.  We  shall  discuss  the  question  of 
diplomatic  immunity  at  some  length  when  we  come  to  deal 
with  the  subject  of  Legation  and  Negotiation ; 2  but  we  allude 
to  it  here  in  order  to  show  that  the  privileges  accorded  to  am- 
bassadors are  exceptions  to  the  ordinary  rules  concerning 
state  authority. 

§  107 

Among  those  whose  privileged  position  entitles  them  to 
exemption  from  the  jurisdiction  of  a  friendly  power  when 

1  Despagnet,  Droit  International  Public,  p.  246.  a  See  §§  128-130. 


240  BIGHTS   AND   OBLIGATIONS 

they  coine  within  its  territory,  we  must  give  a  prominent 
place  to 

The  public  armed  forces  of  foreign  states. 

We  will  first  consider  the  case  of  land  forces  and  then 
discuss  the  extent  of  the  immunities  of  sea  forces.  It  is 
Exceptions  to  or-  necessary  to  separate  the  two  because  the  rules 

jSctit  •  "IT*  with  regard  to  them  differ-  The  universally 
Public  armed  recognized  rule  of  modern  times  is  that  a  state 

forces  of  foreign  » 

states.  must  obtain  express  permission  before  its  troops 

can  pass  through  the  territory  of  another  state,  though  the 
contrary  opinion  was  held  strongly  by  Grotius,1  and  his  views 
continued  to  influence  publicists  till  quite  recently.  Permis- 
sion may  be  given  as  a  permanent  privilege  by  treaty  for 
such  a  purpose  as  sending  relief  to  garrisons,  or  it  may  be 
granted  as  a  special  favor  for  the  special  occasion  on  which  it 
is  asked.  The  agreement  for  passage  generally  contains  pro- 
visions for  the  maintenance  of  order  in  the  force  by  its  own 
officers,  and  makes  them,  and  the  state  in  whose  service  they 
are,  responsible  for  the  good  behavior  of  the  soldiers  towards 
the  inhabitants.  In  the  absence  of  special  agreement  the 
troops  would  not  be  amenable  to  the  local  law,  but  would  be 
under  the  jurisdiction  and  control  of  their  own  commanders, 
as  long  as  they  remain  within  their  own  lines  or  are  away  on 
duty,  but  not  otherwise. 

With  regard  to  public  vessels,  which  though  generally  men- 
of-war,  may  be  unarmed  ships  in  the  service  of  the  state,  no 
special  permission  is  required  before  they  can  enter  the  ports 
of  a  friendly  state.  Freedom  of  entry  is  assumed  unless  the 
local  sovereign  makes  an  express  declaration  to  the  contrary, 
which  he  can  do  on  assigning  good  reasons.  But  in  case  of 
war  he  must,  if  neutral,  treat  both  belligerents  alike,  and  not 
admit  the  vessels  of  one  while  excluding  those  of  the  other. 
He  must  also  enforce  conditions  which  protect  his  sovereignty 
and  make  his  neutrality  real.2  Exclusion  is  very  rare ;  and 

1  De  Jure  Belli  ac  Pacts,  bk.  II,  ch.  II,  xiii.          a  See  part  IV,  ch.  iii. 


CONNECTED   WITH   JURISDICTION  247 

the  tacit  permission  to  enter  implied  by  the  absence  of  any 
attempt  to  prevent  entry  is  freely  accorded.  Moreover,  it  is 
now  held  to  carry  with  it  a  more  or  less  complete  exemption 
from  the  authority  of  the  local  sovereign.  The  accepted 
principle  of  modern  times  is  that  jurisdiction  is  waived  when 
entry  is  allowed.  But  it  must  be  admitted  that  this  broad 
doctrine  is  of  recent  growth.  In  1794  Attorney-general 
Bradford  gave  an  opinion  in  the  case  of  a  British  sloop-of- 
war,  out  of  which  six  American  citizens  were  taken  by  the 
local  authorities  while  she  was  lying  in  the  harbor  of  Newport, 
Rhode  Island.  On  the  case  being  referred  to  him  by  the 
Government  of  Washington,  he  replied  that  "the  laws  of 
nations  invest  the  commander  of  a  foreign  ship-of-war  with 
no  exemption  from  the  jurisdiction  of  the  country  into  which 
he  comes."1  A  similar  opinion  was  given  in  1799  by  Attor- 
ney-general Lee  in  the  case  of  the  British  packet  Chesterfield, 
as  to  which  he  declared,  "  It  is  lawful  to  serve  civil  or  criminal 
process  upon  a  person  on  board  a  British  ship-of-war  lying  in 
the  harbor  of  New  York,"  2  and  argued  that  due  respect  to 
the  country  visited  involved  obedience  to  such  process.  These 
views  were  by  no  means  confined  to  American  lawyers.  They 
seem  to  have  been  held  by  authorities  of  the  highest  repute 
in  England.  Thus  in  1820  Lord  Stowell  was  asked  by  the 
British  Government  for  an  opinion  upon  the  case  of  John 
Brown,  a  British  subject  who,  having  escaped  from  a  prison 
into  which  he  had  been  thrown  by  the  Spaniards  for  aiding 
their  revolted  American  colonies,  took  refuge  on  the  British 
warship  Tyne,  lying  in  the  harbor  of  Callao,  and  claimed 
the  protection  of  the  flag.  In  his  reply  the  great  English 
jurist  not  only  declared  that  the  captain  of  the  British  vessel 
had  no  right  to  protect  Brown,  but  added,  "  I  am  led  to  think 
that  the  Spaniards  would  not  have  been  chargeable  with 
illegal  violence,  if  they  had  thought  proper  to  employ  force 
in  taking  this  person  out  of  the  vessel."3 

1  Opinions  of  Attorneys-General  of  the  United  States,  vol.  I,  p.  47. 

a  /6id.,  p.  91.     3  Halleck,  International  Law  (Baker's  ed.),  vol.  I,  p.  188. 


248  BIGHTS   AND   OBLIGATIONS 

Such  doctrines  as  these  would  reduce  the  immunities  of  a 
public  vessel  almost  to  vanishing  point.  They  would  never 
probably  have  been  acquiesced  in  on  the  continent  of  Europe, 
and  even  while  they  were  being  uttered  in  England  and 
America  a  strong  countercurrent  of  opinion  made  itself 
manifest  in  quarters  entitled  to  the  utmost  respect.  Thus  in 
1810  Chief  Justice  Marshall,  in  delivering  the  judgment  of 
the  Supreme  Court  of  the  United  States  in  the  famous  case 
of  the  Exchange?  took  occasion  to  discuss  the  whole  subject 
of  the  exemption  of  public  ships  in  foreign  ports  from  the 
local  jurisdiction.  He  placed  permission  to  enter  upon  the 
ground  of  implied  license,  and,  after  pointing  out  that  a  ship- 
of-war  could  not  do  her  duty  to  her  sovereign  if  she  were 
subject  to  the  interference  of  another  authority,  he  went  on 
to  say,  "  The  implied  license,  therefore,  under  which  such  a 
vessel  enters  a  friendly  port  may  reasonably  be  construed, 
and  it  seems  to  the  court  should  be  construed,  as  containing 
an  exemption  from  the  jurisdiction  of  the  sovereign  within 
whose  territory  she  claims  the  rites  of  hospitality."  On 
this  great  judgment  the  doctrine  now  most  widely  held 
both  in  America  and  in  Great  Britain  is  based.  In  1855 
during  the  Crimean  War  the  British  cruiser  President  cap- 
tured a  Russian  vessel  called  the  Sitka  and  brought  her  into 
the  harbor  of  San  Francisco  with  a  prize-crew  on  board. 
The  local  courts  issued  a  writ  of  habeas  corpus  to  try  the 
validity  of  the  detention  of  two  of  the  prisioners.  Process 
was  served,  but  the  commander  of  the  Sitka  immediately 
departed  without  obeying  it.  The  opinion  of  Attorney- 
general  Gushing  was  taken  upon  the  case.  He  commended 
the  captain  for  departing  and  thus  avoiding  unprofitable 
controversy,  and  took  occasion  to  say  that  the  courts  of  the 
United  States  had  "adopted  unequivocally  the  doctrine 
that  a  public  ship-of-war  of  a  foreign  sovereign  at  peace  with 
the  United  States,  coming  into  our  ports  and  demeaning 
herself  in  a  friendly  manner,  is  exempt  from  the  jurisdiction 

1  Cranch,  Reports  of  the  U.S.  Supreme  Court,  vol.  VII,  p.  116. 


CONNECTED   WITH   JURISDICTION  249 

of  the  country."1  This  view  is  shared  by  British  and 
American  writers  of  repute  and  by  almost  all  the  interna- 
tional jurists  of  continental  Europe.  Indeed  it  may  be  said 
to  have  been  adopted  by  the  publicists  of  the  civilized 
world.  Ortolan,  the  only  one  among  them  who  by  reason  of 
his  career  as  a  naval  officer  is  able  to  speak  from  practical 
experience,  is  most  emphatic  in  his  assertion  of  immunity.2 
This  consensus  of  opinion  outweighs  entirely  the  views  of  a 
few  great  English  lawyers  and  one  or  two  continental  jurists 
who  still  cling  to  the  ancient  doctrine;  and  recent  practice 
is  in  entire  accord  with  it.  Ships-of-war  everywhere  claim 
and  everywhere  receive  exemption  from  the  local  jurisdic- 
tion. If  International  Law  is  to  be  deduced  from  practice, 
the  controversy  on  this  point  is  at  an  end. 

But  though  exemption  is  the  general  rule,  we  shall  find  on 
an  examination  of  the  usages  of  states  that  it  is  not  absolute 
and  complete.  Being  based  upon  convenience  it  is  limited 
by  convenience;  and  extreme  inconvenience  would  obviously 
result  if  ships-of-war  in  foreign  ports  were  at  liberty  to  dis- 
regard ordinary  harbor  regulations  and  sanitary  precautions. 
The  local  authorities  can  enforce  all  reasonable  health  and 
port  regulations;  and,  if  the  visiting  vessel  is  a  belligerent, 
they  may  compel  it  to  observe  neutrality  regulations,  and 
may  detain  and  try  any  prizes  it  has  brought  into  the  port, 
should  there  be  good  reason  to  believe  that  the  captures 
were  made  in  violation  of  their  neutrality.  It  is  further 
clear  that  a  state  may  prevent  the  cruisers  of  another  state 
from  enforcing  their  revenue  laws  in  its  waters.  These  ex- 
ceptions to  the  ordinary  rule  are  amply  sufficient  to  demon- 
strate the  falsity  of  the  theory  that  a  ship-of-war  is  for  all 
legal  purposes  a  floating  portion  of  the  territory  of  the  state 
to  which  she  belongs.  If  she  were  anything  of  the  kind,  she 
could  in  no  way  be  made  amenable  to  the  local  jurisdic- 
tion. 

1  Opinions  of  Attorneys-General  of  the  United  States,  vol.  VII,  p.  122. 

2  Diplomatic  de  la  Mer,  bk.  II,  ch.  X. 


250  RIGHTS   AND   OBLIGATIONS 

§108 

The  immunities  granted  to  public  vessels  while  lying  in 
the  territorial  waters  of  friendly  states  ought  not  to  be 
The  owe  of  poiiti-  abused.  A  ship-of-war  is  a  floating  fortress 
i'Suve"  charged  with  the  duty  of  protecting  the  inter- 
8laves-  ests  of  her  country  wherever  she  may  be  sent. 

To  turn  her  into  an  asylum  for  fugitive  criminals  is  a  gross 
perversion  of  the  purpose  for  which  she  was  commissioned 
by  her  own  sovereign,  as  well  as  a  gross  insult  to  the  sover- 
eign in  whose  waters  she  is  staying.  Any  captain  proved  to 
be  guilty  of  it  ought  to  be  dismissed  from  the  service  with- 
out ceremony.  Even  when  a  criminal  has  succeeded  in 
taking  refuge  on  board  without  the  connivance  of  the 
commander,  he  should,  if  possible,  be  given  up  unless 
his  offence  be  political.  But  the  demand  should  be  made 
diplomatically,  not  to  the  captain,  who  has  no  authority 
to  hold  an  extradition  court  on  board  his  vessel  and  decide 
whether  the  alleged  offender  should  be  surrendered  or  not. 
Still  less  should  any  attempt  be  made  by  the  local  authorities 
to  arrest  the  fugitive  on  board  the  foreign  vessel  of  war. 
They  have  no  power  to  enforce  their  law  under  its  flag,  and 
a  commander  who  in  such  a  case  repelled  force  by  force 
would  be  acting  within  his  duty.  The  best  course  for  the 
officer  in  command  to  take  when  a  fugitive  criminal  is  found 
on  board,  is  to  expel  him  at  once.  He  can  be  turned  out  of 
the  vessel  into  which  he  entered  without  right,  though  the 
captain  cannot  suffer  him  to  be  arrested  while  on  board  or 
entertain  any  demand  for  his  surrender ;  and  when  he  has 
been  set  on  shore,  the  local  authorities  can  deal  with  him. 
They  can  be  warned  beforehand  that  he  will  be  landed  at  a 
given  time  and  place.  But  political  offenders  are  held  to 
differ  from  ordinary  criminals,  and  the  great  preponderance 
of  modern  opinion  and  practice  is  in  favor  of  their  reception. 
Yet  even  in  their  case  the  commanders  of  public  vessels  are 
bound  to  refrain  from  offering  asylum  and  aiding  escape. 


CONNECTED   WITH  JURISDICTION  251 

If  a  political  refugee  in  imminent  danger  is  able  to  reach  a 
foreign  man-of-war  lying  in  the  waters  of  the  country  whose 
authorities  are  seeking  to  secure  him,  he  may  be  allowed 
to  come  on  board,  and  must  be  protected  against  arrest. 
This  is  the  rule  of  Great  Britain  and  America,  and  most 
civilized  states  concur  in  it.  It  applies  also  to  the  case  of  a 
political  offender  who  escapes  to  some  other  country,  and, 
having  come  on  board  in  its  waters,  is  taken  by  the  vessel  into 
a  port  of  the  country  in  which  his  offence  was  committed. 
In  no  case  should  any  demand  for  the  surrender  of  the 
refugee  be  entertained  by  the  commanding  officer  of  the  ship 
that  has  received  him.  The  authorities  who  wish  to  secure 
him  must  ask  for  his  extradition  through  the  usual  diplo- 
matic channels.  A  British  commander  left  without  instruc- 
tions should  bring  the  fugitive  to  an  English  port,  or  set  him 
ashore  in  some  country  where  he  will  be  safe.  While  on  board 
he  must  not  be  allowed  to  communicate  with  his  political 
friends  or  use  the  ship  in  any  way  for  propagandist  purposes. 
But  it  should  be  noted  that  merchant  vessels  can  offer  no 
asylum  to  offenders  of  any  kind.  However  unjust  the  local 
law  may  be,  however  tyrannical  the  government,  however 
laudable  resistance  to  its  authority,  no  safe  place  of  refuge 
can  be  found  on  board  a  foreign  merchantman  in  its  ports. 
The  local  law  applies  to  such  ships;  they  are  under  the  local 
jurisdiction;  and  the  local  authorities  may  enter  them  and 
arrest  any  of  their  own  subjects  found  therein.  But  in  the 
early  years  of  the  last  decade  of  the  nineteenth  century,  the 
United  States  showed  a  disposition  to  assert  a  qualified  right 
of  asylum  on  board  their  merchant  vessels,  more  especially  if 
they  were  mail  steamers.  In  the  case  of  General  Barrundia, 
which  occurred  in  1890,  a  diplomatic  minister  was  recalled  for 
writing  a  letter  in  which  he  advised  the  captain  of  an 
American  passenger  steamer  to  deliver  up  the  general,  a 
Guatemalan  political  refugee,  to  the  local  authorities  in  the 
Guatemalan  port  of  San  Jose.  And  in  connection  with  the 
same  case  a  commander  of  the  United  States  navy  was  cen- 


252  EIGHTS  AND   OBLIGATIONS 

sured  for  failing  to  offer  Barrundia  an  asylum  on  board  his 
vessel.1  But  the  new  and  somewhat  nebulous  doctrine  in- 
volved in  this  and  other  cases  which  arose  about  the  same 
time  has  not  been  mentioned  since;  and  in  1896  Mr.  Olney, 
as  secretary  of  state,  informed  the  Turkish  Minister  that 
"  if  any  attempt  were  made  [at  Constantinople]  to  land 
clandestinely  men  or  munitions  from  a  vessel  under  our 
[American]  flag,  the  officers  of  the  United  States  would  cer- 
tainly interpose  no  obstacle  to  the  due  execution  of  the  laws 
of  Turkey  by  Turkish  agents,  or  intervene  further  than  to 
secure  for  any  implicated  citizen  of  the  United  States  all  the 
rights  and  privileges  to  which  he  may  be  entitled  by  virtue 
of  such  citizenship."  2 

The  case  of  fugitive  slaves  has  raised  a  considerable 
amount  of  difficulty,  especially  in  Great  Britain.  There  can 
be  no  doubt  that  during  the  prevalence  of  that  older  view  of 
the  law  which  reduced  to  very  small  proportions  the  im- 
munities of  public  vessels  in  foreign  waters,  slaves  who  es- 
caped to  British  vessels  lying  in  the  ports  of  countries  where 
slavery  was  legal  were  given  up  to  the  local  authorities.3 
But  the  growth  of  opinion  in  favor  of  the  modern  doctrine  of 
exemption  except  for  a  few  well-defined  purposes  coincided 
with  the  deepening  of  the  feeling  against  slavery;  and  a 
great  outcry  arose  in  England  when  in  1875  the  British  Ad- 
miralty issued  a  circular  directing  captains  of  the  Queen's 
ships  to  surrender  fugitive  slaves  who  came  on  board  their 
vessels  in  the  territorial  waters  of  states  that  authorize 
slavery.  The  Government  appointed  a  commission  to  inves- 
tigate the  subject;  and,  after  receiving  its  report,  withdrew 
the  first  circular  and  published  a  second,  which  directed 
naval  officers  in  the  circumstances  just  described  not  to  re- 
ceive a  slave  on  board  unless  his  life  was  in  manifest  danger, 
and  not  to  keep  him  on  board  after  the  danger  was  passed, 

1  Moore,  International  Law  Digest,  vol.  n,  pp.  851,  852,  871-883. 

2  Ibid.,  vol.  II,  p.  279. 

8  Report  of  the  British  Fugitive  Slave  Commission,  1875. 


CONNECTED    WITH   JURISDICTION  253 

but  to  entertain  no  demand  for  his  surrender  nor  enter  into 
any  examination  as  to  his  status.1  This  placed  the  larger 
part  of  the  burden  of  responsibility  on  the  captains  who  had 
to  deal  with  the  cases;  but  it  made  clear  the  adhesion  of 
Great  Britain  to  the  doctrine  of  the  immunity  of  the  public 
vessel  from  local  authority,  which  had  been  strenuously 
maintained  by  the  international  lawyers  who  were  members 
of  the  commission  and  as  strenuously  denied  by  their 
colleagues. 

Though  a  state  is  forbidden  to  execute  its  laws  on  board 
foreign  men-of-war  lying  in  its  harbors,  it  is  not  left  without 
remedies  if  it  deems  itself  aggrieved  by  the  proceedings  of 
such  vessels.  It  can  demand  the  extradition  of  the  fugitives, 
it  can  complain  diplomatically,  it  can  order  the  offending 
vessel  to  quit  its  waters,  and  it  can  refuse  to  receive  into  its 
ports  in  future  any  public  vessels  of  the  same  nationality. 
Moreover,  the  immunities  of  which  we  have  been  speaking 
do  not  follow  the  members  of  the  ship's  company  when  they 
land  for  their  own  purposes  and  not  on  public  business.  In 
their  ship,  and  in  its  boats,  which  are  appurtenant  to  it  and 
share  its  privileges,  they  are  exempt  from  the  local  jurisdic- 
tion ;  but  the  moment  they  set  foot  on  shore  they  come  under 
the  authority  of  the  state,  and  may  be  arrested  and  tried  like 
other  foreigners  if  they  commit  crimes  or  create  disturbances. 
Should  they  thus  misconduct  themselves  and  then  succeed 
in  escaping  to  their  ship,  the  commanding  officer  ought,  if 
the  matter  is  at  all  serious,  to  punish  them  on  the  application 
of  the  local  authorities  or  deliver  them  to  the  latter  for  punish- 
ment, the  first  course  being  in  general  preferable. 


§109 

The  remaining  exception  from  ordinary  rules  with  regard 
to  territorial  jurisdiction  occurs  in  the  case  of 

1  British  Fugitive  Slave  Circular,  Dec.  5,  1875,  §  93  C. 


254  K1GHTS  AND   OBLIGATIONS 

Subjects  of  Western  states  resident  in  Eastern  countries. 

It  rests  on  special  agreement,  and  not,  like  those  we  have 
been  considering  hitherto,  on  the  common  law  of  nations. 
It  is  maintained  because  of  the  defective  character  of  much  of 
the  Oriental  administration  of  justice,  and  the  different  views 
on  the  subject  of  trial  and  punishment  entertained  generally 
in  Eastern  and  Western  countries.  In  conse- 

Exceptions  to  or- 
dinary rules  about  quence  of  these  considerations  Christian  states 

jurisdiction:     (*)....  .  ,,  .      T       . 

subjects  of  west-    obtained  by  treaties  called  capitulations  exemp- 

ern  states  resident     ..          »•  .,       •.         •.   .       «    j «    .  •         <•        .  i      •  i   • 

in  Eastern  coun-  tion  from  the  local  jurisdiction  for  their  subjects 
resident  in  many  Eastern  lands  under  native 
rule.  By  Conventions  with  the  rulers  of  these  regions,  reen- 
forced  sometimes  by  custom,  authority  over  Europeans  and 
Americans  resident  within  their  territories  is  given  to  con- 
sular courts.  Thus  consuls,  who  among  Western  nations 
are  mainly  commercial  agents,1  exercise  in  Oriental  states 
important  judicial  functions,  and  possess  large  immunities 
conferred  on  them  for  the  protection  of  their  countrymen. 
Their  jurisdiction  is  both  civil  and  criminal.  The  manner 
of  its  exercise  depends  on  the  law  of  the  country  to  which 
each  consul  belongs,  on  treaty  stipulations  between  that 
country  and  others,  and  long-continued  custom.  Generally 
subjects  of  the  local  sovereign  who  may  commit  any  crime 
against  subjects  of  a  foreign  state  resident  in  their  country 
are  dealt  with  by  the  local  tribunals ;  but  subjects  of  a  foreign 
state  who  may  be  charged  with  criminal  offences  against 
natives  are  tried  in  the  consular  courts  of  their  own  nation. 
In  cases  that  arise  between  subjects  of  different  foreign 
nationalities,  the  aggrieved  person  can,  in  the  absence  of 
special  treaty  regulations,  seek  redress  in  the  consular  court 
of  the  country  whose  subject  has  done  the  wrong  ;  and  if 
two  subjects  of  the  same  foreign  nation  stand  to  one  another 
in  the  relation  of  accuser  and  accused,  the  case  is  tried  in 
the  court  to  whose  authority  both  of  them  are  subject.  In 

1  See  §  131. 


CONNECTED   WITH   JURISDICTION  255 

civil  matters  questions  that  arise  between  a  foreigner  and 
a  native  are  generally  settled  by  a  tribunal  in  which  agents 
of  both  the  foreign  and  the  native  state  have  a  voice.  When 
two  or  more  foreigners  of  the  same  nationality  are  the  parties 
to  the  suit,  it  is  tried  in  their  own  consular  court ;  and  when 
the  dispute  is  one  between  foreigners  of  different  nations,  it 
goes  to  the  consular  court  of  the  defendant's  country.  As  a 
rule  there  is  an  appeal  in  civil  cases  of  great  importance  to 
the  superior  tribunals  of  the  consul's  country  ;  and  in  criminal, 
cases  the  highest  sentences  cannot  be  passed  without  the  rati- 
fication of  the  home  authorities.  Sometimes  it  is  arranged 
that  persons  charged  with  grave  crimes  should  be  sent  home 
for  trial.  In  order  to  gain  the  protection  of  a  consul  in  the 
East  it  is  necessary  for  subjects  of  the  state  he  represents  to 
register  themselves  at  the  consulate.  Registration  of  the 
head  of  a  family  implies  registration  of  all  members  of  the 
family  living  under  the  same  roof.  Throughout  the  Turkish 
Empire  England  has  a  network  of  vice-consular  and  consular 
courts  culminating  in  the  court  of  the  consul-general  at 
Constantinople.  Their  authority,  and  the  authority  of  her 
consular  courts  in  other  countries,  is  derived  from  the  Foreign 
Jurisdiction  Acts  (1843-1890)  and  Orders  in  Council  made 
in  pursuance  of  them.  The  authority  of  the  consular  courts 
of  the  United  States  rests  upon  Acts  of  Congress  passed  in 
1848,  1860,  and  1870.  But  it  must  be  noted  that  these  acts 
and  similar  laws  of  other  civilized  and  Christian  powers  could 
give  no  jurisdiction  within  the  dominions  of  Oriental  states, 
were  it  not  for  the  treaties  and  customary  rules  whereby  the 
right  to  establish  consular  courts  is  expressly  granted  by  the 
local  sovereigns.1  In  Egypt  the  consular  system  was  super- 
seded in  1876,  after  negotiations  extending  over  nearly  ten 
years,  by  a  system  of  mixed  tribunals  commonly  called  inter- 
national courts.  The  judges  of  these  courts  are  partly 
natives  and  partly  foreigners,  the  majority  always  belonging 

1  Halleck,  International  Law  (Baker's  ed.),  ch.  XI;  Hall,  Foreign  Juris- 
diction of  the  British  Crown,  pp.  132-203. 


256  RIGHTS   AND   OBLIGATIONS 

to  the  latter  category.  Their  powers  and  functions  are  reg- 
ulated by  an  elaborate  code;  and  the  appointment  of  the 
judges  rests  with  the  Egyptian  administration,  which  is, 
however,  bound  in  selecting  the  foreign  members  of  the 
courts  to  act  on  the  recommendation  of  their  respective  gov- 
ernments. Fourteen  powers,  including  the  United  States, 
have  assented  to  these  arrangements,1  which  are  much  more 
satisfactory  than  the  old  consular  courts.  They  have  been 
prolonged  from  time  to  time,  the  last  occasion  being  in 
February,  1905. 

There  can  be  no  doubt  that  abuses  do  occasionally  arise, 
owing  to  the  large  immunities  given  under  the  consular  sys- 
tem to  subjects  of  Christian  states  in  Oriental  countries  and 
the  powerlessness  of  the  local  sovereign  to  enforce  any  au- 
thority over  them.  We  have  but  to  imagine  a  case  in  some 
remote  district  far  from  the  influence  of  civilized  public 
opinion,  where  the  protected  subject  is  a  rascal  and  the  local 
consul  careless  or  unscrupulous,  to  see  what  grave  injustice 
might  be  done  without  the  possibility  of  redress.  Some 
states  allow  their  consuls  to  naturalize  foreigners  with  great 
ease;  and  it  is  said  that  half  the  scoundrels  of  the  Levant 
find  it  convenient  to  escape  from  the  local  jurisdiction  in 
Morocco  and  the  outlying  parts  of  the  Turkish  Empire  by 
obtaining  some  foreign  nationality,  under  cover  of  which  they 
cheat  and  plunder  the  natives  with  impunity.  Too  much  care 
cannot  be  exercised  by  self-respecting  Christian  states  in  such 
matters.  They  must  in  the  interests  of  their  own  people  in- 
sist on  some  system  of  immunity  ;  but  they  should  not  allow 
what  is  necessary  to  protect  their  subjects  to  become  a  means 
for  the  oppression  of  the  subjects  of  the  local  sovereign. 

When  countries  hitherto  governed  by  native  rulers  of  the 
Oriental  type  pass  under  the  sway  of  Christian  and  civil- 
ized powers,  one  of  their  first  cares  is  to  abolish  the  con- 
sular courts,  so  that  they  may  become  in  reality  masters 

1  Holland,  European  Concert  in  the  Eastern  Question,  pp.  102,  103, 
128-147. 


CONNECTED   WITH  JURISDICTION  257 

in  their  own  dominions ;  and  the  states  who  possess  treaty 
rights  to  maintain  such  courts  usually  make  no  difficulty 
in  renouncing  them.  Thus  when  France  in  1881  established 
over  the  Tunisian  Regency  a  protectorate  which  differed 
only  in  name  from  complete  annexation,  she  commenced 
negotiations  with  the  powers  who  had  what  is  .called  con- 
sular capitulations  with  Tunis,  and  was  able  in  1884  to 
supersede  the  consular  courts  by  French  judges.1  And 
again  when  in  1896  she  turned  Madagascar  from  a  colonial 
protectorate  into  a  French  colony  she  negotiated  with  Great 
Britain  for  the  recognition  of  the  territorial  jurisdiction  of 
the  French  tribunals  she  established  in  the  island.  In  1897 
she  gained  her  purpose  on  giving  a  pledge  to  extend 
a  similar  recognition  to  the  British  tribunals  which  were 
about  to  be  constituted  in  the  British  protectorate  of  Zanzi- 
bar.2 And  just  as  states  of  European  civilization  feel  im- 
pelled to  obtain  the  abolition  of  all  privileges  which  may 
impede  the  exercise  of  territorial  jurisdiction,  when  they 
have  extended  their  dominion  over  countries  where  the  sys- 
tem of  consular  courts  has  previously  flourished,  so  do  strong 
Oriental  states  when  they  have  put  in  practice  ideas  of  jus- 
tice familiar  to  Western  thought,  desire  emancipation  from 
the  restraints  on  their  authority  conceded  in  their  days  of 
weakness.  When  Japan,  for  instance,  had  shown  in  1894 
her  strength  and  her  civilization,  the  great  European  powers 
and  the  United  States  of  America  judged  that  her  native 
tribunals  would  afford  sufficient  security  for  the  lives  and 
property  of  their  subjects  resident  in  her  territory,  and  abol- 
ished by  treaties  with  her  government  the  jurisdiction  of 
their  consular  courts.  Great  Britain  led  the  way;  the  others 
followed;  and  by  the  end  of  the  century  her  emancipation 
was  accomplished.3  One  of  the  most  honorable  of  the  am- 
bitions of  the  "  Young  Turks  "  who  are  striving  to  turn  their 

1  Statesman's  Year  Book,  1894,  P-  523. 

3  British  Parliamentary  Papers,  Africa,  No.  8  (1897),  p.  69. 

8  Hall,  International  Law,  5th  ed.,  p.  53,  note. 


258  RIGHTS  AND   OBLIGATIONS 

country  into  a  constitutional  state  is  to  follow  in  her  foot- 
steps in  this  respect,  and  all  lovers  of  ordered  liberty  may 
without  hesitation  wish  them  success. 


§110 

We  have  now  to  consider  the  subject  of  Extradition,  which 
may  be  defined  as:  The  surrender  by  one  state  to  another  of  an 
Extradition.  A  individual  who  is  found  within  the  territory  of 
the  former,  and  is  accused  of  having  committed  a 


absence  of  a  treaty  ^wie  within  the  territory  of  the  latter;  or  who, 

obliging  it  to  do  ,  . 

so.  having  committed  a  crime  outside  the  territory  of 

the  latter,  is  one  of  its  subjects,  and,  as  such,  by  its  law  amenable 
to  its  jurisdiction.  Such  surrenders  are  usually  made  in  pur- 
suance of  treaty  obligations,  though  there  are  not  wanting 
cases  where  criminals  have  been  given  up  in  the  absence  of 
any  stipulation  on  the  subject.  The  earliest  extradition 
treaty  on  record  was  negotiated  about  thirteen  hundred  years 
before  Christ  between  Rameses  II,  King  of  Egypt  (the 
Pharaoh  who  knew  not  Joseph),  and  Khitasir,  King  of  the 
Khita.  It  provided  for  friendship  and  alliance  between  the 
two  monarchs  and  for  a  strict  return  of  fugitives  from  one 
another's  dominions.1  But  the  example  set  at  so  remote  a 
period  has  not  been  followed  to  any  great  extent  till  recent 
times  ;  and  when  agreements  for  mutual  surrender  were 
made,  they  applied  more  often  than  not  to  political  offenders. 
The  great  mass  of  extradition  treaties  dates  from  the  nine- 
teenth century  and  even  from  its  latter  half.  They  have 
been  rendered  necessary  by  the  rapid  growth  of  intercourse 
between  peoples  and  the  great  preponderance  of  opinion  in 
favor  of  the  doctrine  that  crime  is  in  the  main  territorial. 

Writers  on  International   Law  have  differed   greatly  on 

the  question  whether  a  state  is  bound  to  surrender  fugitive 

criminals  unless  it  has  contracted  to  do  so  by  treaty.     The 

majority  of  them   favor  the  negative   view,  and   the   same 

1  Burgsch,  Egypt  and  the  Pharaohs,  vol.  II,  pp.  71-76. 


CONNECTED   WITH  JURISDICTION  259 

may  be  said  of  statesmen  and  judges.  Each  state  must 
decide  for  itself  whether  in  the  absence  of  treaty  stipulations 
it  will  give  up  criminals  or  not ;  but  it  is  now  generally  ad- 
mitted that  a  surrender,  though  it  has  often  taken  place,  is 
a  matter  of  comity  and  not  of  right.  There  is  no  rule  of 
International  Law  commanding  governments  to  return  to 
one  another  fugitives  from  justice  on  demand  from  the  coun- 
try where  the  crime  was  committed.  The  practice  of  states 
differs.  In  America  it  is  held  that  in  the  absence  of  a  treaty 
there  is  no  law  that  authorizes  the  President  to  deliver  up 
any  one  charged  with  having  committed  a  crime  in  the  terri- 
tory of  a  foreign  nation,  or  at  least  that  there  are  grave 
doubts  as  to  his  right  to  do  so.1  Surrender  was  made  in 
1864  in  the  case  of  Arguelles,  who  was  given  up  to  the 
Spanish  authorities  for  a  crime  of  a  peculiarly  atrocious 
character,  though  there  was  then  no  extradition  treaty  with 
Spain;  and  on  that  occasion  the  Senate  interfered  with  a 
request  to  be  informed  under  what  authority  of  law  or  treaty 
the  act  was  done.  Mr.  Seward,  the  secretary  of  state,  ad- 
mitted in  his  reply  that  the  United  States  was  under  no 
obligation  to  make  the  surrender,  and  justified  his  action  on 
the  grounds  of  comity  and  humanity.  The  attempts  to  stop 
the  surrender  failed,  but  the  question  of  the  power  to  make 
it  was  never  judicially  decided.2  The  law  of  England  ap- 
pears to  be  strongly  against  surrender.  It  is  held  that  the 
common  law  gives  the  executive  no  power  to  arrest  an  alien 
and  deliver  him  to  a  foreign  state.3  The  Crown  has  a  right 
to  negotiate  extradition  treaties;  but  their  provisions  can- 
not be  brought  into  effect  without  statutory  authority.  The 
Extradition  Act  of  1870  gives  the  Crown  power  by  Order  in 
Council  to  carry  into  effect  all  extradition  treaties  made  in 
accordance  with  its  terms;  and  in  the  United  States  statutes 

1Note  on  Extradition  in  Treaties  of  the  United  States,  pp.  1289  and  1291. 
3  Wheaton,  International  Law  (Dana's  ed.),  p.  183,  note  ;  Moore,  Inter- 
national Law  Digest,  vol.  IV,  pp.  246-253. 
8  Clarke,  Extradition,  ch.  V. 


260  BIGHTS   AND   OBLIGATIONS 

passed  in  1848  and  1860  enable  the  courts  to  act  under  duly 
proclaimed  extradition  treaties.  Thus  the  two  great  English- 
speaking  peoples  have  adopted  practically  the  same  principles 
in  this  important  matter.  In  France,  on  the  other  hand,  the 
received  legal  doctrine  is  that  the  state  authorities  have  an 
inherent  right  to  surrender  fugitive  criminals  if  they  think 
fit  to  do  so,  and  the  French  view  finds  favor  in  most  civilized 
countries.  Even  the  United  States  and  Great  Britain  do 
not  hesitate  to  take  advantage  of  it  and  ask  foreign  states 
with  whom  they  have  no  agreements  for  extradition  to  sur- 
render on  the  ground  of  comity  fugitives  whom  they  would 
not  themselves  give  up  were  the  positions  of  the  countries 
reversed.  Thus  in  October,  1893,  the  Government  of  Wash- 
ington obtained  from  Costa  Rica,  although  there  was  no 
extradition  treaty  between  that  country  and  America,  the 
surrender  of  a  fugitive  named  Weeks,  who  was  accused  of 
embezzlement  within  the  United  States.1 

§  HI 

But  these  questions  of  the  common  law  of  nations  and 
the  limits  of  the  executive  authority  of  domestic  governments 
The  conditions  are  becoming  year  by  year  less  important,  owing 
fnecvrtaradiuosnrt6d  to  the  almost  universal  adoption  of  extradition 
treaties.  treaties,  and  the  greatly  enlarged  list  of  crimes 

that  now  find  a  place  within  them.  One  example  will 
suffice  to  show  the  immense  progress  made  in  this  latter 
respect  within  recent  times.  The  extradition  clauses  of 
the  treaty  of  1842  between  the  United  States  and  Great 
Britain  made  mention  of  seven  crimes  for  which  surrender 
could  be  demanded,  but  to  these  seven  the  Convention  of 
1890  added  twenty  others.2  It  is  now  the  usual  custom 

1  Stephen,  History  of  the  Criminal  Law,  vol.  II,  p.  66 ;  Treaties  of  the 
United  States,   note  on  Extradition,  pp.  1289-1293 ;  Moore,  International 
Law  Digest,  vol.  IV,  pp.  253-258. 

2  Treaties  of  the  United  States,  p.  437 ;  British  Parliamentary  Papers, 
United  States,  No.  1  (1890). 


CONNECTED   WITH   JURISDICTION  261 

to  embody  various  conditions  in  extradition  treaties  and 
to  refuse  to  give  up  an  offender  unless  they  are  met. 
Reasonable  prima  facie  evidence  of  the  guilt  of  the  accused 
is  almost  invariably  demanded;  and  it  is  clear  that  great  in- 
justice might  result  if  a  state  surrendered  fugitives  on  the 
mere  assertion  of  a  foreign  government  that  they  were 
guilty  of  crime.  The  extraditing  state  does  not  claim  to  try 
the  accused  parties  and  find  them  guilty  before  it  will  give 
them  up,  but  it  requires  sufficient  evidence  to  satisfy  its  own 
tribunals  that  the  cases  are  genuine  and  ought  to  be  tried. 
Another  condition  generally  laid  down  in  recent  treaties  is 
that  the  individual  demanded  shall  not  be  tried  for  any 
offence  committed  prior  to  his  surrender,  other  than  the  ex- 
tradition crime,  until  he  has  been  liberated  and  has  had  an 
opportunity  of  leaving  the  country.  The  object  of  this  pro- 
viso is  to  guard  against  the  surrender  of  a  person  for  one 
offence  when  the  real  reason  for  demanding  him  is  to  try 
him  for  another,  possibly  a  political  crime,  possibly  an  offence 
not  mentioned  in  the  treaty.  The  condition  is  perhaps  not 
unreasonable  in  view  of  the  great  divergencies  of  political 
condition  and  theory  between  some  of  the  most  powerful 
states  of  the  civilized  world,  though  it  might  easily  operate 
in  favor  of  a  criminal  whom  it  was  eminently  desirable  to 
punish.  It  is  embodied  in  the  treaty  of  1890  between  Great 
Britain  and  the  United  States,  but  it  does  not  appear  in  the 
treaty  of  1842.  The  British  Extradition  Act  of  1870  which, 
with  further  acts  passed  in  1873,  1895,  and  1907,  constitutes 
the  British  statute  law  on  the  subject,  declared  that  it  must 
be  inserted  in  any  extradition  treaty  put  in  force  by  the 
Crown.  In  these  circumstances  the  late  Earl  Derby,  when 
foreign  secretary  in  1876,  declined  to  surrender  the  forger 
Winslow  and  other  fugitives,  unless  the  American  Govern- 
ment would  give  an  undertaking  that  they  should  not  be 
tried  for  any  offence  other  than  that  for  which  their  extra- 
dition was  demanded.  The  United  States  declined  to  make 
stipulations  and  assurances  not  provided  for  in  the  treaty 


262  RIGHTS   AND   OBLIGATIONS 

which  then  governed  the  situation.  For  some  time  neither 
side  would  give  way,  and  in  consequence  several  fugitives 
from  justice  escaped  surrender.  But  towards  the  end  of  the 
year  the  British  Government  receded  from  its  untenable 
position,  and  the  American  administration  indicated  that 
they  were  not  disposed  to  try  extradited  offenders  for  any 
crime  except  that  which  had  caused  their  surrender.  The 
matter  has  been  set  at  rest  by  the  decision  of  the  Supreme 
Court  in  the  case  of  Rauscher,  who  was  brought  to  trial  for 
the  cruel  and  unusual  punishment  of  a  sailor,  his  extradition 
having  been  obtained  from  Great  Britain  on  the  charge  of 
murdering  the  same  man.  In  1886  the  court  quashed  the 
proceedings  on  the  ground  that  a  fugitive  extradited  for  one 
offence  could  not  be  tried  for  another  until  opportunity  had 
been  given  him  to  return  to  the  country  which  had  surren- 
dered him.1  This  decision  and  the  Convention  of  1890  have 
placed  the  matter  as  between  the  two  nations  beyond  the 
slightest  possibility  of  doubt. 

The  most  important  and  most  difficult  of  the  conditions  to 
be  found  in  most  modern  extradition  treaties  is  that  which 
forbids  surrender  if  the  offence  is  of  a  political  character. 
There  is  no  agreement  among  states  as  to  the  nature  of  a 
political  offence  or  the  marks  that  differentiate  it  from 
other  offences.  Jurists  have  been  unable  to  set  forth  any 
uniform  doctrine ;  and  when  cases  have  come  before  courts 
of  law,  the  judges  have  as  a  rule  shirked  the  difficulty  of  a 
general  definition  and  been  content  to  determine  whether  or 
no  the  individual  before  them  was  a  political  offender.  With 
regard  to  purely  political  offences,  by  which  must  be  under- 
stood acts  committed  in  the  course  of  an  insurrection  or  civil 
war,  the  distinction  enunciated  in  the  thirteenth  of  the  reso- 
lutions on  the  subject  passed  by  the  Institute  of  International 
Law  at  Oxford  in  1880  and  Geneva  in  1892,  seems  as 
satisfactory  as  is  possible  in  such  a  complicated  matter. 

1  Treaties  of  the  United  States,  note  on  Extradition,  p.  1293  ;  Moore, 
International  Law  Digest,  vol.  IV,  pp.  306-311. 


CONNECTED   WITH   JURISDICTION  263 

It  provided  for  a  refusal  of  extradition  unless  it  was  de- 
manded for  acts  forbidden  by  the  laws  of  war.1  Thus  in 
1890  the  British  Court  of  Queen's  Bench  refused  the  ex- 
tradition of  a  Swiss,  named  Castioni,  who  had  been  concerned 
in  an  insurrection  against  the  authorities  of  the  Canton  of 
Ticino,  in  the  course  of  which  he  had  shot  a  fellow-citizen 
during  an  attack  upon  the  municipal  palace  at  Bellinzona. 
In  that  case  it  was  the  connection  of  the  act  with  a  political 
movement  of  which  it  formed  a  part  which,  in  the  judgment 
of  the  court,  gave  it  a  political  character.  It  was  "incidental 
to  and  formed  a  part  of  political  disturbances,"2  and  we  may 
add  that  it  was  an  act  which  would  have  been  perfectly  law- 
ful in  a  regular  war.  Four  years  afterwards  the  same  court 
laid  down  in  the  case  of  the  anarchist  Meunier,  whose  extra- 
dition was  demanded  on  a  charge  of  causing  explosions  in  a 
Paris  cafe  and  a  French  barrack,  that  "  in  order  to  constitute 
an  offence  of  a  political  character  there  must  be  two  or  more 
parties  in  the  state,  each  seeking  to  impose  the  government 
of  their  own  choice  on  the  other,  and  that  if  the  offence  is 
committed  by  one  side  or  the  other  in  pursuance  of  that 
object  it  is  a  political  offence,  otherwise  not."3  There  is  a 
wide  gap  between  these  two  views.  The  doctrine  that  an 
offence  is  political  when  it  is  part  and  parcel  of  a  conflict  be- 
tween two  parties  for  the  control  of  the  government  differs 
materially  from  the  doctrine  that  no  offence  is  political  unless 
it  is  committed  in  the  course  of  such  a  conflict.  The  latter 
not  only  deprives,  as  does  the  fourteenth  of  the  resolutions 
of  the  Institute  of  International  Law  on  the  subject,4 
anarchists  and  enemies  of  society  of  the  protection  of 
the  rule  that  political  offenders  are  not  to  be  surrendered, 
but  it  renders  extraditable  offences  committed  by  solitary 
patriots  or  small  groups  with  a  view,  as  Professor  Westlake 

1  Tableau  General,  p.  106. 

2  Law  Reports,  Queen's  Bench  Division,  1891,  p.  149. 
8  Ibid.,  Queen's  Bench  Division,  1894,  P-  415. 

*  Tableau  General,  p.  106. 


264  BIGHTS   AND  OBLIGATIONS 

points  out,1  to  rousing  their  countrymen  and  initiating 
a  movement  against  the  authorities.  In  short,  it  fails 
to  meet  those  difficult  cases  where  the  act  is  both  political 
in  motive  and  object  and  also  an  ordinary  crime,  the 
dSlits  politiques  complexes  of  French  Law.  One  may  be  un- 
able to  see  why  rulers,  whether  republican  or  monarchical, 
should  be  preserved  like  game  for  the  battues  of  excited  en- 
thusiasts, and  yet  desire  a  test  capable  of  distinguishing  vul- 
gar and  abominable  crimes,  even  when  done  against  political 
personages  and  for  political  objects,  from  the  honorable  efforts 
of  noble  and  self-sacrificing  men  to  free  their  country  from 
what  they  honestly  regard  as  grievous  misrule. 

No  such  test  has  been  found  yet.  It  is  obvious  that  com- 
plex or  relative  political  offences  differ  greatly  from  the 
purely  political  offences  connected  with  a  civil  struggle  be- 
tween two  or  more  parties  in  a  state.  In  a  certain  capital 
the  people  raise  barricades  and  defend  them  against  the 
troops.  One  of  the  insurgent  citizens  shoots  an  officer  who 
is  leading  an  attack.  No  one  doubts  that  he  ought  not  to 
be  surrendered,  if  the  movement  fails  and  he  escapes  to  a 
foreign  state.  What  he  did  was  practically  an  act  of  war, 
and  as  such  came  well  within  the  laws  of  war.  In  another 
capital  a  discontented  citizen  endeavors  to  seize  government 
funds  in  order  to  finance  a  revolutionary  movement  that  he 
hopes  to  set  afoot.  In  the  course  of  his  attempt  he  kills  the 
guardian  of  the  funds,  who  has  discovered  him.  Here  is  an 
act  which  is  at  once  political  and  a  common  law  crime. 
How  are  we  to  decide  whether  the  government  of  another 
country  ought  to  deliver  the  perpetrator  up  for  trial  if  he 
succeeds  in  reaching  its  territory  ?  We  are  often  bidden  to 
make  the  motive  the  great  test.  But  motives  are  hard  to 
fathom  and  often  mixed.  Moreover,  there  seems  no  reason 
why  a  man  should  escape  punishment  for  any  crime,  however 
atrocious,  by  showing  that  his  motives  were  political.  And 
the  same  may  be  said  of  political  purposes.  Is  the  slaughter 
1  Westlake,  International  Law,  part  I,  p.  247. 


CONNECTED   WITH  JURISDICTION  265 

of  a  whole  family  of  young  children  to  be  accounted  a  politi- 
cal crime  for  purposes  of  extradition,  because  the  assassin, 
a  benevolent  monomaniac,  persuaded  himself  that  he  would 
do  God  and  man  service  by  ridding  the  world  of  a  tyrant 
brood  which  he  honestly  believes  to  be  a  curse  to  it  ?  So 
strong  is  the  feeling  that  the  perpetrators  of  such  deeds 
should  not  be  sheltered  as  political  offenders  that  several 
states  which  cannot  be  accused  of  lack  of  attachment  to 
political  liberty  have  taken  steps  to  prevent  the  assertion  of 
any  claim  to  asylum  on  their  behalf.  Belgium,  for  instance, 
which  owes  its  statehood  to  a  successful  revolution,  passed  in 
1856  a  law  removing  from  the  category  of  political  crimes  the 
murder,  or  attempted  murder,  of  the  head  of  a  foreign  state 
or  any  member  of  his  family,  and  the  United  States  has  several 
extradition  treaties  containing  stipulations  to  the  like  effect.1 
If  the  principle  is  good  that  private  assassination  as  distinct 
from  slaughter  in  the  course  of  open  fighting,  whether  during 
war  or  insurrection,  is  not  to  be  accounted  a  political  offence, 
surely  it  ought  not  to  be  confined  to  heads  of  states  and 
their  families,  but  should  be  applied  to  all  who  bear  rule 
from  the  heads  of  administration  down  to  the  humblest  sol- 
dier or  policeman.  The  difficulty  of  dealing  with  delits  poli- 
tiques  relatifs  is  not  overcome  by  a  partial  solution  applicable 
to  one  class  and  one  crime.  We  need  something  general  in 
its  operation  ;  and  in  default  of  a  simple  and  universal  test, 
it  seems  best  to  leave  each  case  to  the  judicial  rather  than 
the  political  department  of  government,  and  to  instruct  the 
courts  to  refuse  extradition  only  when  in  their  judgment  the 
political  elements  in  the  offence  outweigh  the  elements  of 
ordinary  crime.  They  would  then  consider  motive  and  pur- 
pose, but  only  as  two  among  the  factors  that  made  up  the 
case.  Another  alternative  of  an  ingenious  kind  has  been 
put  forward  by  Despagnet.  He  suggests  that  extradition 
should  be  granted  in  the  mixed  cases  we  are  considering, 

1  Oppenheim,   International  Law,   vol.  I,  p.  394 ;   Moore,  International 
Law  Digest,  vol.  IV,  pp.  352-354. 


206  BIGHTS   AND   OBLIGATIONS 

but  only  on  condition  that  the  surrendered  refugee  should 
be  dealt  with  as  an  ordinary  criminal,  and  not  as  a  political 
offender.1  Whatever  plan  is  adopted,  and  even  if  the  pres- 
ent unsatisfactory  complex  of  partial  and  inadequate  solu- 
tions is  allowed  to  continue,  we  should  think  twice  before 
accepting  the  suggestion  of  the  Institute  of  International 
Law  2  that  asylum  should  never  be  granted  under  the  political 
offenders  clause  to  those  who  are  accused  of  crimes  directed 
against  social  order  in  general,  and  not  against  a  particular 
state  or  form  of  government.  The  present  social  order, 
with  its  recurrent  armies  of  unemployed,  its  awful  slums,  its 
enormous  differences  of  wealth  and  opportunity,  its  frequent 
wars,  and  its  incessant  preparations  for  war,  needs  reform 
as  badly  as  any  civilized  government.  And  if  in  the  social 
sphere  it  is  sometimes  very  difficult  to  distinguish  between 
the  reformer  and  the  criminal,  we  have  for  ages  been  con- 
fronted by  the  same  difficulty  in  the  political  sphere.  The 
latter  was  not  solved  by  the  indiscriminate  repressions  of 
the  Holy  Alliance,  and  the  former  will  not  be  solved  by  the 
indiscriminate  surrender  under  extradition  treaties  of  all  who 
have  attacked  the  existing  social  system  with  law-breaking 
and  violence.  In  both  alike  there  is  need  for  distinction 
between  the  reformer  who  is  merged  in  the  criminal  and  the 
criminal  who  is  merged  in  the  reformer,  and,  difficult  as  is 
the  task,  an  attempt  should  be  made  to  perform  it  in  all 
the  cases  which  arise  in  connection  with  political  offences 
and  the  law  of  extradition. 

Great  Britain  and  America  are  the  only  states  of  first-rate 
importance  who  are  willing  to  surrender  their  own  subjects 
to  a  foreign  jurisdiction  for  trial  on  account  of  offences 
committed  in  foreign  territory,  and  even  they  have  con- 
sented to  stipulations  for  the  contrary  practice  in  some  of 
their  extradition  treaties.  Most  countries  decline  to  carry 
the  principle  of  the  territoriality  of  crime  to  its  logical  con- 
clusion, though  there  is  a  strong  body  of  opinion  among 

1  Droit  International  Public,  p.  317.  2  Tableau  General,  p.  106. 


CONNECTED   WITH   JURISDICTION  267 

international  jurists  in  favor  of  so  doing.1  Offenders  are 
either  tried  in  their  own  country,  when  it  has  assumed  juris- 
diction over  its  subjects  for  offences  committed  abroad,  and 
they  have  been  obliging  enough  to  return  to  it,  or  they  have 
escaped  unpunished.  There  seems  little  reason  for  a  course 
of  action  dictated  either  by  an  exaggerated  notion  of  a  citi- 
zen's privileges  or  by  a  profound  distrust  of  the  adminis- 
tration of  justice  in  foreign  lands.  A  case  can  always  be 
watched,  and  in  the  unlikely  event  of  its  being  conducted 
with  manifest  unfairness,  remonstrances  can  be  made.  If 
civilized  states  have  sufficient  confidence  in  one  another  to 
enter  into  extradition  treaties  at  all,  they  ought  to  be  will- 
ing to  surrender  their  own  subjects  when  occasions  arise. 

1  Moore,  International  Law  Digest,  vol.  IV,  pp.  287-304 ;  Tableau  Gene- 
ral, p.  104. 


CHAPTER  IV 

RIGHTS  AND  OBLIGATIONS  CONNECTED  WITH  EQUALITY 

§112 

FROM  the  time  of  Grotius  to  the  present  day  publicists 

have  declared  that  all  independent  states  are  equal  in  the 

eye  of  International  Law.     The  equality  they 

The  meaning  and       •*  -, 

utility  of  the  prin-  speak  of  is  not  an  equality  of  power  and  influ- 
ence, but  of  legal  rights.  They  hold  that  the 
smallest  and  weakest  of  independent  political  communities 
has  exactly  the  same  position  before  the  law  of  nations  as  the 
strongest  and  most  extensive  empire.  Doubtless  this  theory 
was  for  a  long  time  productive  of  great  good.  It  gave  weak 
states  an  admitted  principle  of  appeal  in  the  case  of  aggres- 
sion from  stronger  neighbors ;  and  though  it  did  not  often 
prevent  high-handed  wrong,  it  placed  the  brand  of  illegality 
upon  transactions  of  the  order  familiar  to  readers  of  the  fable 
of  the  wolf  and  the  lamb.  And  the  result  was  that  when 
helpless  states  were  wantonly  attacked,  the  aggressor  invented 
some  plausible  excuse.  The  weaklings  had  been  them- 
selves guilty  of  a  wrong  which  must  be  punished,  or  the  Bal- 
ance of  Power  was  seriously  disturbed  on  account  of  their 
nefarious  conduct,  or  they  were  meditating  outrages  upon 
neighbors  who  were  therefore  reluctantly  compelled  to  attack 
them  in  self-defence.  Thus  a  certain  amount  of  lip-service 
was  done  to  the  principles  of  morality  ;  and  some  respect  for 
International  Law  was  maintained  in  the  midst  of  transac- 
tions that  were  in  reality  lawless. 

§113 

But  an  examination  of  modern  international  history  reveals 
a  number  of  facts  which  it  is  hard  to  reconcile  with  the  old 

268 


CONNECTED    WITH   EQUALITY  269 

theory  of  the  complete  equality  of  all  fully  sovereign  states. 
They  seem  to  point  instead  to  a  primacy  on  the  part  of 
the  foremost  powers  of  the  civilized  world.  If 

.  Facts  hard  to 

we  direct  our  attention  at  first  to  Europe,  as  reconcile  with  the 

,1  ,    •  i_  •    i     T     i  .L'          IT  theory  of  equality. 

the  nest  in  which  International  Law  was  nour- 
ished into  vigorous  life,  we  find  that  at  the  beginning  of  the 
last  century  a  certain  leadership  was  assumed  by  the  powers 
who  had  borne  the  brunt  of  the  struggle  against  Napoleon. 
At  the  Congress  of  Vienna  in  1814  and  1815,  France,  con- 
quered though  she  was,  succeeded  in  gaining  a  place  by  their 
side,  and  in  1818  she  was  formally  admitted  to  an  equal 
share  in  their  deliberations  and  decisions.1  Thus  was  con- 
stituted the  Concert  of  Europe.  It  consisted  originally  of 
England,  France,  Austria,  Prussia  (since  merged  in  Germany), 
and  Russia,  and  in  1867  the  newly  created  kingdom  of  Italy 
was  added.  It  has  passed  through  periods  of  greater  and 
lesser  vigor ;  but,  if  now  and  again  it  has  seemed  for  a  time 
to  be  in  abeyance,  it  has  always  reasserted  its  position  and 
authority.  To  describe  its  activity  with  fulness  would  be 
to  write  a  large  part  of  the  international  history  of  Europe 
during  a  century  crowded  with  great  events.  The  perform- 
ance of  such  a  task  is  neither  possible  nor  desirable  in  the 
midst  of  a  treatise  on  International  Law.  All  that  can  be 
done  here  is  to  give  such  a  brief  summary  as  will  be  suffi- 
cient to  call  attention  to  the  main  facts. 

The  Great  Powers,  as  we  have  just  seen,  called  into  being 
the  European  order  that  succeeded  the  wars  of  the  French 
Revolution  and  the  conquests  of  Napoleon,  and  have  super- 
vised many  of  the  important  modifications  of  it  which  have 
since  taken  place.  The  kingdom  of  Greece  has  grown  up 
under  the  tutelage  of  the  European  Concert,  which  has  more 
than  once  restrained  it,  once  secured  for  it  additional  terri- 
tory, and  once  at  least  preserved  it  from  destruction.  The 
most  active  part  in  its  establishment  in  1832  was  taken  by 

1  Dupuis,  Le  Principe  D^quilibre  et  le  Concert  Europeen,  pp.  114-198; 
Westlake,  Chapters  on  the  Principles  of  International  Law,  pp.  92-101. 


270  RIGHTS   AND   OBLIGATIONS 

England,  France,  and  Russia,  and  the  same  three  poweie  with 
Italy  are  now  (July,  1911)  dealing  with  the  difficulties 
caused  by  the  ardent  desire  of  Crete  for  union  with  it,  and 
the  determination  of  Turkey  not  to  part  with  her  nominal 
supremacy  over  the  island.  But  the  other  two  members  of 
the  Concert  were  consulted  at  the  beginning,  are  being  con- 
sulted at  the  present  time,  and  took  an  active  part  in  the 
intervening  events.1  In  the  case  of  Belgium  all  the  Great 
Powers  were  formally  concerned  from  the  first  in  its  sever- 
ance from  Holland,  and  all  concurred  in  its  neutralization  as 
an  independent  state  in  1839. 2  One  of  the  main  objects  of 
the  Crimean  War,  and  the  only  one  that  has  been  perma- 
nentlv  attained,  was  to  take  the  power  of  settling  the  destinies 
of  the  subject  Christian  populations  of  Turkey  out  of  the 
hands  of  Russia  alone,  and  intrust  it  instead  to  the  Concert 
of  Europe.  Though  Austria  and  Prussia  had  not  been 
belligerents,  they  were  admitted  as  Great  Powers  to  the 
conference  that  drew  up  the  Treaty  of  Paris  in  1856.  And 
again,  in  1878,  Russia  was  not  allowed  to  impose  her  own 
terms  on  Turkey,  but  they  were  submitted  to  a  conference, 
in  which  England,  France,  Germany,  Austria,  and  Italy  took 
part,  though  none  of  them  had  been  engaged  in  the  conflict. 
The  congress  discussed  exhaustively  the  questions  raised  by 
the  war,  and  substituted  the  Treaty  of  Berlin  for  the  Treaty 
of  San  Stefano,  which  was  regarded  as  a  preliminary  document 
to  be  modified  by  general  consent.  The  readjustments 
that  have  taken  place  since  have  been  matters  of  negotia- 
tion between  the  powers ; 3  and  the  last  and  greatest  of  them, 
the  annexation  of  Bosnia  and  Herzegovina  by  Austria  in  1908, 
and  the  proclamation  of  the  independence  of  Bulgaria  at  the 
same  time,  have  given  rise  to  an  acute  controversy  to  which 
we  shall  allude  in  the  next  chapter.4  In  addition  to  super- 

1  Holland,    European    Concert    in    the    Eastern    Question,    pp.   4-69 ; 
Dupuis,   Le    Principe  D'fiquilibre  et  le   Concert  Europeen,  pp.   195-198, 
373-400. 

2  Dupuis,  Ibid.,  pp.  199-230.  «  Ibid.,  pp.  350-410.  *  See  §  134. 


CONNECTED   WITH  EQUALITY  271 

intending  and  controlling  the  territorial  and  political  changes 
we  have  described,  the  Great  Powers  received  Turkey 
into  the  family  of  nations  in  1856,  made  provision  in  the 
same  year  for  the  due  execution  of  international  works  at  the 
mouth  of  the  Danube,  conferred  the  rank  of  a  Great  Power 
on  Italy  and  neutralized  Luxemburg  in  1867,  and  granted 
conditional  recognition  of  independence  to  Roumania,  Servia, 
and  Montenegro  in  1878. 

The  territories  already  referred  to  belong  geographically 
to  Europe  ;  but  this  cannot  be  said  of  Egypt,  and  yet  the 
European  Concert  has  concerned  itself  with  that  country. 
The  explanation  is  to  be  found  in  its  close  political  con- 
nection with  Turkey,  its  great  strategic  value,  and  its  po- 
sition on  the  most  important  highway  between  East  and 
West,  a  position  which  the  opening  of  the  Suez  Canal 
in  1869  rendered  more  commanding  than  before.  We 
cannot  enter  here  into  the  complicated  arrangements, 
financial  and  political,  brought  about  by  the  extravagance 
and  bad  government  of  the  Khedive  Ismail,  and  the  opposi- 
tion of  England  and  France.  It  is  sufficient  to  say  that  the 
Agreement  of  1904  between  the  two  powers  has  removed  a 
mass  of  difficulties,  and  its  recognition  by  the  leading  states 
of  Europe  has  made  the  British  control  of  Egypt  more  regu- 
lar and  stable  than  before.  European  interests  predominate 
in  her,  and  therefore  the  Concert  of  Europe  naturally  con- 
cerned itself  with  her.  But  the  vast  territories  drained  by  the 
Congo  and  the  Niger,  and  their  affluents,  have  no  such  close 
connection  with  Europe.  Yet  when  it  became  necessary  in 
1884  to  regulate  commercial  interests  and  provide  for  the 
development  of  civilized  rule  within  them,  the  conference 
that  assembled  for  that  purpose  was  composed  of  repre- 
sentatives not  only  from  thirteen  European  powers  but  also 
from  the  United  States  of  America.  Silent  but  eloquent 
testimony  was  thus  borne  to  two  great  facts.  The  first  is  that 
the  state-system  of  Africa  is  an  offshoot  from  the  state-system 
of  Europe,  and  is  therefore  supervised  by  the  Great  Powers 


27^  RIGHTS   AND   OBLIGATIONS 

of  Europe,  all  of  whom  took  part  in  the  Congo  Conference, 
though  two  of  them  had  no  territorial  and  commercial  in- 
terests at  stake.  The  second  is  equally  important  from  the 
point  of  view  of  future  developments.  It  is  that  when  com- 
mercial and  humanitarian  affairs  are  concerned  on  a  scale  of 
international  importance,  the  voice  of  the  United  States 
must  be  heard  in  the  settlement.  That  is  to  say,  there  is 
a  Concert  wider  than  the  Concert  of  Europe,  and  in  it  the 
great  American  Republic  is  certainly  included.  In  the  be- 
ginning of  her  independent  career,  her  fixed  policy  was  to 
refrain  from  entangling  herself  in  European  broils,  and  Europe 
in  its  turn  was  bidden  to  keep  its  hands  off  American  affairs. 
The  earth  was  smaller  then  than  it  is  now,  and  Europe  was 
by  far  the  larger  part  of  it.  The  only  alternative  to  joining 
in  the  game  of  European  statecraft  was  isolation.  To-day  the 
whole  world  has  been  opened  up  to  international  activity. 
Asiatic,  African,  South  American,  and  Oceanic  problems  task 
the  faculties  of  statesmen,  and  influence  the  welfare  of  man- 
kind. A  vast  and  powerful  state  cannot  live  alone,  simply 
because  it  is  not  alone.  Its  rulers  must  take  account  of  the 
forces  that  act  and  react  on  their  own  people.  American 
statesmen  have,  therefore,  been  obliged  to  play  a  part  in  the 
evolution  of  a  new  international  order.  They  could  indeed 
refrain  from  troubling  themselves  about  the  Balance  of 
Power  in  Europe,  and  insist  that  the  European  political 
system  should  not  be  extended  to  their  hemisphere  ;  but 
the  very  act  of  doing  so  brought  them  into  contact  with 
other  powers,  and  in  1898  a  successful  war,  caused  in  part 
by  the  time-honored  policy  of  reducing  to  a  minimum  Euro- 
pean influence  in  American  affairs,  gave  them  control  of 
territories  far  outside  their  earlier  boundaries.  Moreover, 
they  could  not  refuse  to  take  an  interest  in  the  freedom  of 
commerce  on  the  great  African  rivers,  the  extension  of  "  the 
policy  of  the  open  door"  in  China,  and  the  diminution  of 
the  curse  of  slavery  throughout  the  world  with  a  view  to  its 
eventual  abolition.  But  with  matters  such  as  these  politi- 


CONNECTED   WITH   EQUALITY  273 

cal  interests  are  bound  up  ;  and  so  it  has  come  to  pass  that 
a  great  world-power  has  been  obliged,  almost  against  its 
will,  to  take  part  in  world-affairs.  An  American  plenipo- 
tentiary sat  at  the  Morocco  Conference  of  1906,  side  by  side 
with  the  delegations  of  the  Great  Powers  and  the  states 
that  had  signed  the  Treaty  of  Madrid  of  1880. l  It  might 
have  been  argued  that  the  representatives  of  the  United 
States  attended  the  Congo  Conference  simply  and  solely  in 
the  interests  of  common  humanity  and  American  trade,  and 
that  the  claims  of  the  former  alone  drew  them  to  the 
great  Brussels  Anti-slavery  Conference  of  1890.  But  it  can 
hardly  be  maintained  that  they  went  to  Algeciras  without 
any  regard  to  the  main  object  of  the  meeting,  which  was  to 
preserve  the  peace  of  Europe  by  reconciling  the  claims  of 
Germany  on  the  one  hand  and  France  and  Spain  on  the 
other,  in  respect  of  "  the  pacific  penetration  "  of  Morocco. 

The  state  system  of  Asia,  unlike  that  of  Africa,  shows 
some  signs  of  separate  and  independent  life.  It  would  be  im- 
possible to-day  for  Russia,  France,  and  Germany  to  deprive 
Japan  of  the  most  precious  fruits  of  victory,  as  they  forced 
her  in  1895  to  restore  Port  Arthur  to  conquered  China  ;  nor 
would  Germany,  Russia,  Great  Britain,  and  France  be  likely 
to  obtain  from  China  leases  of  parts  of  her  territory,  as 
they  did  in  1898.  The  position  of  Japan  has  improved  so 
enormously  that  she  is  now  not  only  independent  in  fact  as 
well  as  in  name,  but  has  also  risen  to  the  rank  of  an  eighth 
Great  Power.  China,  too,  has  increased  in  strength  ;  but 
her  government  must  attain  to  a  much  higher  standard  of 
knowledge  and  efficiency,  and  rid  itself  of  much  corruption, 
before  she  can  take  a  secure  and  honored  place  in  the  so- 
ciety of  nations.  Outside  the  territory  of  these  two  powers, 
though  there  is  much  unrest,  there  is  little  international 
life  that  Europe  does  not  control.  .Most  of  the  Continent 
belongs  to  European  states.  Their  aims  in  government, 
their  views  of  native  development,  their  agreements  and 
1Dupuis,  Le  Principe  D'lZquilibre  et  le  Concert  Europeen,  p.  481. 


274  BIGHTS   AND  OBLIGATIONS 

rivalries  among  themselves,  dictate  the  policies  carried  out 
on  its  surface.  No  doubt  Japan  would  be  consulted  in  any 
rearrangement  of  the  continental  part  of  Eastern  Asia  at  all 
analogous  to  the  settlement  of  Europe  after  the  downfall  of 
Napoleon.  But  those  who  sat  in  conference  with  her  would 
come  from  European  nations,  with  the  exception  of  the 
representatives  of  the  United  States  of  America,  who  would 
undoubtedly  be  present.  It  is  unlikely  that  Asia  will  de- 
velop an  international  polity  of  her  own  in  the  near  future, 
though  it  is  quite  possible  that  an  Asiatic  system  may  be- 
come part  of  a  great  world-system. 

This  brings  us  to  a  most  important  point.  We  have  seen 
that  there  is  a  Concert  of  Europe.  We  have  also  seen  that 
there  is  not  a  Concert  of  Africa,  or  a  Concert  of  Asia,  as  dis- 
tinct from  the  Concert  of  Europe.  But  is  there  not  a  Con- 
cert of  the  World?  Governments  have  learned  that  there 
are  many  matters  which  concern  the  whole  of  civilized  man- 
kind. Within  the  last  half-century  they  have  acquired  the 
habit  of  meeting  together  by  their  representatives  for  the 
transaction  of  common  business  of  all  sorts ;  and  provision 
has  been  generally  made  on  such  occasions  for  the  subse- 
quent acceptance  of  the  conclusions  reached  by  those  states 
who  were  not  able  or  willing  to  take  part  in  the  proceedings. 
We  have  had  agreements  of  all  kinds  —  Geneva  Conventions, 
Postal  Conventions,  Railway  Conventions,  Wireless  Telegra- 
phy Conventions,  Copyright  Conventions,  Sugar  Conven- 
tions, Conventions  for  the  Protection  of  Submarine  Cables, 
and  even  a  Convention  for  Putting  down  the  Sleeping  Sick- 
ness.1 Some  of  these  are  so  general  as  to  be  practically 
universal.  Others  are  partial.  But  all  testify  to  a  growing 
solidarity  among  the  nations,  and  a  desire  to  develop  organs 
for  the  purpose  of  common  action.  It  was  this  feeling  which 
rendered  possible  the  Hague  Conferences  of  1899  and  1907, 

1  See  Article  by  Professor  Paul  S.  Reinsch  on  International  Unions  and 
their  Administration  in  The  American  Journal  of  International  Law, 
July,  1907. 


CONNECTED   WITH   EQUALITY  275 

and  will  secure  the  periodical  assembling  of  others.1  Com- 
bination for  what  we  may  call  business  purposes  led  to  the 
establishment  of  a  rudimentary  international  legislature,  and 
the  creation  of  the  machinery  for  calling  together  judicial 
tribunals  to  settle  international  disputes.  And  just  as  the 
six  Great  Powers  of  Europe  act  the  part  of  leaders  when 
important  matters  that  concern  all  the  states  of  Europe 
come  up  for  settlement,  so  do  the  eight  Great  Powers  of 
the  World  take  the  lead  when  all  the  states  of  the  civil- 
ized world  come  together  to  settle  grave  questions  connected 
with  the  preservation  of  peace  and  the  humanizing  of  war. 
In  both  cases  the  leadership  is  not  defined  and  limited  by 
hard  and  fast  rules.  It  is  indefinite,  but  nevertheless  very 
real.  The  second  Hague  Conference  failed  to  settle  a  num- 
ber of  important  questions  connected  with  capture  at  sea  in 
time  of  war,  though  it  succeeded  in  producing  an  excellent 
plan  for  the  establishment  of  an  International  Prize  Court. 
The  eight  great  World-Powers,  therefore,  came  into  confer- 
ence at  London  in  December,  1908,  and  in  the  course  of  the 
following  three  months  agreed  on  a  Declaration  which  bids 
fair  to  settle  nearly  all  the  points  at  issue.  There  can  be  little 
doubt  that  other  states  will  accept  their  regulations,  and 
that  the  International  Prize  Court  will  be  created.  Spain 
and  Holland  were,  for  various  reasons,  invited  to  the  Con- 
ference of  London,  but  they  did  not  come  as  Great  Powers. 
While  the  episode  proves  that  a  certain  hegemony  is  vested 
in  the  eight,  it  also  shows  that  the  position  itself,  and  all  the 
procedure  relating  to  it,  is  vague  and  indefinite. 

§114 

We  must  be  cautious  in  drawing  inferences  from  the  facts 
iust  recited.     Attempts  are  made  to  reconcile  „ 

J  The  present  a 

them  with  the  doctrine  of  the  equality  of  all  sov-  Period  of 

transition. 

ereign  states  by  pointing  out  that  what  they 
establish  is  a  political  inequality,  whereas  what  the  old  theory 

i  See  §  32. 


276  BIGHTS   AND   OBLIGATIONS 

asserted  was  a  legal  equality.1  It  is  a  grave  question  whether 
the  legal  and  the  political  aspects  of  the  problem  can  be 
parted  and  kept  separate  in  this  way.  The  distinction 
holds  good  in  a  state  where  there  is  a  legislative  body  to 
make  the  law  and  a  judicial  body  to  interpret  it,  and  not 
even  unanimous  consent  to  a  political  arrangement  can 
make  it  legal  unless  the  legislature  enacts  it  and  the 
judges  enforce  it.  But  in  a  system  of  rules  depending,  like 
International  Law,  for  their  validity  on  general  consent,  what 
is  political  is  legal  also,  if  it  is  generally  accepted  and 
acted  on.  In  the  society  of  nations  consent  has  the  force  of 
law,  and  general  consent  is  shown  not  only  by  express  agree- 
ment, but  still  more  by  continuous  custom.  If,  therefore,  the 
authority  of  the  Great  Powers  has  been  acknowledged  so  con- 
stantly for  the  greater  part  of  a  century  that  it  has  become  a 
part  of  the  public  order  of  Europe,  and  is  accepted  and  even 
invoked  by  the  smaller  states  of  Europe,  any  description  of 
it  which  refuses  to  recognize  its  legality  seems  inadequate,  if 
not  inaccurate.  The  European  Concert  is  a  legal  organ  of 
Europe  in  much  the  same  sense  that  the  diplomatic  service 
of  a  state  is  a  legal  organ  of  that  state.  But  it  is  still  in  a 
rudimentary  condition,  as  was  the  diplomatic  service  itself 
three  hundred  years  ago.  Moreover,  its  procedure  is  by  no 
means  fixed.  Sometimes  it  admits  to  its  deliberations  the 
smaller  states  concerned  in  the  matter  at  issue,  and  some- 
times it  excludes  them.  The  fact  that  a  small  state  signed 
in  the  past  a  treaty  that  is  to  be  revised  in  the  present, 
sometimes  causes  it  to  be  invited  to  the  council  board,  while 
a  Great  Power  is  summoned  as  such,  even  though  it  was  not 
a  signatory.  In  fact,  procedure  is  dictated  by  the  conven- 
ience of  the  moment,  without  much  regard  to  consistency  or 
precedent.  No  binding  custom  has  yet  arisen  concerning 
it  ;  and  the  same  may  be  said  of  the  method  of  giving 
effect  to  the  decisions  of  the  Concert.  Sometimes  it  enforces 
its  authority  by  war  or  the  threat  of  war ;  sometimes  one  or 
1  See  Oppenheim,  International  Law,  vol.  I,  pp.  161-167. 


CONNECTED   WITH   EQUALITY  277 

two  of  its  members  take  on  themselves  to  compel  submission 
to  its  dictates  ;  sometimes  it  merely  gives  advice. 

It  is  not  contended  that  the  primacy  of  the  Great  Powers 
confers  on  them  in  their  individual  capacity  any  greater 
rights  than  those  possessed  by  other  members  of  the  family 
of  nations.  In  matters  connected  with  property,  jurisdiction, 
and  diplomacy,  they  are  on  the  same  footing  as  their  smaller 
neighbors,  nor  do  they  claim  as  belligerents  or  neutrals 
privileges  that  would  not  be  accorded  to  the  weakest  of 
independent  states.  It  is  only  when  they  act  collectively 
that  they  possess  a  superintending  authority  not  granted  to 
any  temporary  alliance.  Europe  allows  them  in  some  mat- 
ters to  speak  on  its  behalf.  The  arrangements  they  make 
are  accepted  and  acted  upon  by  other  states,  not  only  when 
they  refer  to  the  redistribution  of  territory,  which  might  be 
regarded  as  an  accomplished  fact  to  be  noted,  whether 
effected  by  fair  means  or  foul,  but  also  when  they  remodel 
political  arrangements  in  such  a  way  as  to  impose  continuous 
obligations  upon  other  powers  who  were  not  admitted  to 
their  councils.  The  neutralization  of  Belgium,  for  instance, 
is  regarded  as  under  the  protection  of  the  public  law  of  Eu- 
rope, and  every  European  state  is  held  bound  not  to  attack 
the  Belgian  kingdom  as  long  as  it  fulfils  the  fundamental 
conditions  of  its  existence.  But  it  was  erected  and  neutral- 
ized by  the  action  of  the  Great  Powers,  who  gave  it  the 
peculiar  status  that  it  possesses.  They,  therefore,  burdened 
the  rest  of  Europe  with  fresh  obligations  ;  and  the  fact  that 
they  were  allowed  to  do  so,  not  only  in  this  case  but  in  many 
others,  shows  that  their  position  of  primacy  is  recognized  by 
tacit  consent.  The  future  alone  can  decide  whether  their 
present  limited  and  ill-defined  authority  will  become  formal 
and  general.  There  is  no  moral  or  jural  necessity  about  the 
doctrine  of  equality.  The  society  of  nations  has  changed  its 
form  in  the  past,  and  there  is  nothing  inherently  improbable 
in  the  idea  that  it  is  experiencing  another  change  in  our  own 
time.  It  may  be  working  round  again  to  the  old  notion  of 


278  RIGHTS   AND   OBLIGATIONS 

a  common  superior — not  indeed  a  pope  or  an  emperor,  but 
a  committee,  a  body  of  representatives  from  its  leading  states. 
If  this  is  the  real  explanation  of  the  phenomena  we  have 
attempted  to  describe,  probably  the  new  organization  will  be 
world-wide  rather  than  European,  and  the  Great  Powers  of 
the  future  will  be  the  leading  members  of  the  society  of  na- 
tions without  regard  to  geographical  situation. 

But  we  must  not  speak  with  absolute  confidence  about  the 
future  of  a  development  which  has  only  just  begun.  The 
European  Concert  has  been  in  existence  for  nearly  a  century, 
and  we  can  generalize  from  considerable  experience  of  its 
activities.  But  the  World  Concert  can  hardly  be  dated  back 
further  than  the  Hague  Conference  of  1907,  when  Japan 
obtained  a  recognized  position  among  the  Great  Powers  by 
being  accorded,  along  with  the  seven  who  already  ranked  as 
such,  the  right  of  a  summons  for  her  judge  to  sit  at  ever}' 
meeting  of  the  International  Prize  Court.1  Once  and  once 
only,  in  1908-1909,  have  the  Great  Powers  of  the  world  met 
in  that  capacity  in  an  International  Conference ;  and  on  that 
occasion  the  Declaration  of  London  was  the  result  of  their 
labors.  A  more  important  international  document  has 
rarely,  if  ever,  seen  the  light.2  If,  as  seems  probable,  it  is 
duly  ratified  and  receives  the  adhesion  of  the  great  majority 
of  civilized  states,  it  will  establish  a  generally  accepted  code 
of  maritime  capture  as  the  undoubted  law  of  the  society  of 
nations,  and  lead  to  the  creation  of  an  International  Prize 
Court  to  administer  the  rules  it  has  laid  down.  In  this 
achievement  lie  hidden  the  germs  of  numberless  reforms, 
and  among  them  must  be  reckoned  the  development  of  the 
organization  that  has  already  performed  a  great  service  to 
humanity.  But  we  must  take  into  account  the  influences 
that  act  against  it  as  well  as  those  that  operate  in  its 
favor.  There  is  on  the  one  hand  the  feeling  that  objects  to 

1  Whittuck,  International  Documents,  p.  195 ;  Supplement  to  the  American 
Journal  of  International  Law,  vol.  II,  p.  183. 

2  Whittuck,  International  Documents,  Appendix. 


CONNECTED   WITH   EQUALITY  279 

any  organization  of  international  society  because  it  limits 
the  power  of  a  strong  and  masterful  state  to  dictate  at  the 
moment  such  rules  as  it  deems  to  act  in  its  own  favor,  and 
on  the  other  the  idea  that  anything  which  militates  against 
the  absolute  equality  of  all  independent  states  in  all  matters 
is  to  be  reprobated  as  an  attack  on  international  justice. 
These  two  extremes  meet  in  their  opposition  to  anything 
like  a  Cabinet  Council  of  the  nations.  It  has  yet  to  be  seen 
whether  they  will  prevail.  The  matter  rests  in  the  last  re- 
sort with  the  opinion  of  the  rulers  and  peoples  of  civilized 
mankind.  The  theory  that  states  become  Great  Powers 
whenever  they  possess  the  elements  of  strength  for  war  more 
abundantly  than  their  neighbors  takes  into  account  only  half 
the  facts.  A  state  does  not  become  a  Great  Power  because 
it  is  strong,  though  it  cannot  be  a  Great  Power  without 
being  strong.  The  tacit  consent  of  other  states,  and  the 
action  of  those  who  were  Great  Powers  before,  give  it  the 
position.  And  the  Great  Powers  themselves  as  a  body  are 
something  very  different  from  a  band  of  international  bludg- 
eon-men. They  perform  functions  of  guidance  and  direction 
from  which  other  states  derive  great  benefit.  Their  position 
is  accepted  because  the  society  of  nations  feels  the  need  of 
their  authority.  If  they  cease  to  be  useful  their  preeminence 
will  depart  from  them.  If  their  services  become  more 
marked  as  time  goes  on,  they  will  develop  into  a  regular 
organ  of  international  life. 

§115 

The  state-system  of  the  American  continent  is  unique. 
It  cannot  be  regarded  as  in  any  respects  an  appendage  of  the 
state-system  of  Europe.  American  states  share 

•*  *  ,  The  state-system 

with  European  states  the  benefits  of  member-  of  the  American 
ship  in  the  society  of  nations,  and  hold  them- 
selves bound  by  International  Law.     But  they  emphatically 
repudiate  any  exercise  of  authority  on  their  soil  by  the  Con- 
cert of  Europe  or  any  alliance  of  European  powers.     Indeed 


280  BIGHTS   AND   OBLIGATIONS 

the  greatest  and  strongest  among  them,  the  United  States 
of  America,  set  herself  early  in  her  independent  career  to 
prevent  any  interference  on  the  part  of  the  Old  World. 
The  doctrine  of  Washington's  Farewell  Address,  eloquently 
paraphrased  by  Jefferson  in  his  inaugural  in  the  famous 
words,  "  peace,  commerce,  and  honest  friendship  with  all  na- 
tions—  entangling  alliances  with  none,"  grew  in  the  hands 
of  President  Monroe,  and  under  the  circumstances  connected 
with  the  project  of  the  Holy  Alliance  to  restore  the  domin- 
ion of  Spain  over  her  revolted  American  colonies,  into  an 
assertion  that  the  United  States  would  consider  any  attempt 
on  the  part  of  European  powers  "  to  extend  their  system  to 
any  portion  of  this  hemisphere  as  dangerous  to  our  peace  and 
safety."  The  same  message  of  December  2,  1823,  declared 
that  "  the  American  continents  by  the  free  and  independent 
condition  which  they  have  assumed  and  maintain,  are  hence- 
forth not  to  be  considered  as  subjects  for  future  colonization 
by  any  European  powers."  These  two  principles  taken  to- 
gether form  the  Monroe  Doctrine,  which  has  been  repeated 
again  and  again  in  documents  emanating  from  the  executive 
department.  It  has  been  the  subject  of  a  vast  amount  of 
comment,  and  the  glosses  upon  it  sometimes  go  far  beyond 
the  original  text.  We  will  not  attempt  to  collect,  still  less 
to  reconcile,  the  various  statements  that  have  been  put  forth 
from  time  to  time.  What  we  have  to  do  is  to  make  clear 
the  position  which  the  United  States  does  in  fact  occupy 
with  regard  to  the  other  powers  of  the  New  World. 

It  has  entered  into  no  formal  alliance  for  mutual  support 
with  the  other  American  republics ;  but  nevertheless  it  has 
acted  again  and  again  on  the  principles  laid  down  by  Presi- 
dent Monroe.  Lapse  of  time  has  taken  away  the  point 
from  the  declaration  against  the  increase  of  European  domin- 
ion by  way  of  further  colonization  on  American  soil ; l  for 
no  one  now,  or  for  some  generations  past,  has  doubted  that 

1  It  is  arguable  that  the  frozen  islands  of  the  extreme  north  are  in  law  res 
nullius,  but  climatic  difficulties  must  prevent  occupation  in  any  real  sense. 


CONNECTED   WITH   EQUALITY  281 

every  part  of  the  continent  has  passed  under  the  sway  of  a 
civilized  state,  and  is  no  longer  open  to  occupation  in  the 
technical  sense.  But  the  strong  objection  against  the  exten- 
sion of  the  state-system  of  Europe  across  the  Atlantic  has  been 
widened  so  as  to  cover  any  acquisition  of  territory  by  Euro- 
pean powers,  or  any  intervention  on  their  part  for  the  purpose 
of  setting  up  a  new  form  of  government.  More  than  once 
Great  Britain  and  France  were  informed  that  the  United 
States  would  not  see  with  indifference  the  transfer  of  Cuba 
from  Spain  to  any  other  European  power.  The  Clayton- 
Bulwer  Treaty  of  1850  bound  England  not  to  exercise  do- 
minion over  "  any  part  of  Central  America,"  and  in  the  course 
of  the  long  discussions  that  followed  as  to  the  exact  meaning 
and  extent  of  the  obligation  thereby  imposed,  persistent  dip- 
lomatic pressure  at  last  prevailed  on  the  British  Govern- 
ment to  give  up  the  protectorate  it  had  acquired  long  before 
the  treaty  was  signed  over  the  Indians  of  the  Mosquito  Coast.1 
The  French  intervention  in  Mexico  coincided  in  point  of 
time  with  the  great  American  Civil  War ;  but  the  Federal 
Government,  preoccupied  as  it  was,  did  not  neglect  to  protest 
whenever  opportunity  offered,  not  indeed  against  the  attack 
on  Mexico  by  France,  but  against  the  attempt  on  the  part  of 
the  French  army  of  occupation  to  destroy  the  Republican  in- 
stitutions of  the  country  and  set  up  an  emperor,  contrary,  it 
was  maintained,  to  the  wishes  of  the  great  majority  of  the 
Mexican  people.  The  downfall  of  the  Confederacy  enabled 
the  administration  at  Washington  to  act  with  greater  vigor 
than  before;  and  its  energetic  remonstrances,  coupled  with 
the  knowledge  that  if  they  were  disregarded  force  would  in  all 
probability  be  used,  caused  France  to  withdraw  her  troops  and 
led  to  the  speedy  downfall  of  the  unfortunate  Emperor  Maxi- 
milian.2 Spanish  sovereignty  has  been  brought  to  an  end  in 
Cuba  by  the  war  of  1898,  and  the  island  has  been  launched  on 
a  state-life  of  its  own  under  the  benevolent  tutelage  of  the 

1  Message  of  President  Buchanan,  December  3,  1860. 

2  Moore,  International  Law  Digest,  vol.  VI,  pp.  488-607. 


282  EIGHTS    AND   OBLIGATIONS 

great  American  Republic.1  But,  while  the  United  States 
acts  as  warder  of  the  continent  for  the  purpose  of  keeping 
the  European  state-system  out  of  the  New  World,  it  rec- 
ognizes that  circumstances  may  arise  in  which  it  is  the  right 
and  duty  of  a  transatlantic  power  to  exact  reparation  from 
an  American  state.  In  that  case  it  will  not  interfere  as 
long  as  the  demands  of  the  injured  government  do  not  take  the 
form  of  the  cession  or  permanent  occupation  of  territory. 
Thus,  when  in  1901  Great  Britain,  Germany,  and  Italy  con- 
templated the  use  of  force  against  Venezuela  in  order  to  make 
the  country  discharge  various  claims  and  contractual  obliga- 
tions, President  Roosevelt  wrote  in  his  message  of  December  3, 
"  We  do  not  guarantee  any  state  against  punishment  if  it 
misconducts  itself,  provided  that  punishment  does  not  take 
the  form  of  the  acquisition  of  territory  by  any  non-American 
power."  2 

It  is  necessary  to  speak  with  caution  in  describing  the 
present  position  of  the  United  States  with  respect  to  the 
other  powers  of  the  American  continent ;  but  the  facts  seem 
hardly  consistent  with  the  old  doctrine  of  the  absolute  equal- 
ity of  independent  states.  The  words  of  Mr.  Fish  in  his 
Report  of  July,  1870,  to  President  Grant  more  accurately 
define  it.  The  secretary  of  state  says,  "  The  United  States, 
by  the  priority  of  their  independence,  by  the  stability  of 
their  institutions,  by  the  regard  of  their  people  for  the  forms 
of  law,  by  their  resources  as  a  government,  by  their  naval 
power,  by  their  commercial  enterprise,  by  the  attractions 
which  they  offer  to  European  immigration,  by  the  prodigious 
internal  development  of  their  resources  and  wealth,  and  by 
the  intellectual  life  of  their  population,  occupy  of  necessity 
a  prominent  position  on  this  continent  which  they  neither 
can  nor  should  abdicate,  which  entitles  them  to  a  leading 
voice,  and  which  imposes  on  them  duties  of  right  and  of 
honor  regarding  American  questions,  whether  those  ques- 
tions affect  emancipated  colonies,  or  colonies  still  subject 
See  §  39.  2  Moore,  International  Law  Digest,  vol.  VI,  p.  590. 


CONNECTED   WITH  EQUALITY  283 

to  European  dominion."  This  statement  is  correct  both  in 
fact  and  in  theory,  if  we  except  from  the  last  clause  of  it 
the  internal  affairs  of  the  few  remaining  European  colonies 
in  the  New  World.  It  will  hardly  be  contended  that  the 
Government  of  Washington  has  any  right,  moral  or  legal, 
to  qualify  the  independence  of  the  countries  to  which  they 
belong  by  meddling  with  their  domestic  affairs. 

The  principle  set  forth  in  the  quotation  just  given  is  re- 
spected by  the  leading  European  powers.  It  may  be  taken  for 
granted  that  under  existing  conditions  they  will  not  attempt 
to  increase  their  dominions  by  the  addition  of  fresh  territory 
in  the  New  World.  The  question  of  disputed  frontiers  does, 
however,  present  a  difficulty.  It  is  possible  under  color  of 
settling  a  boundary  to  claim  territory  that  undoubtedly 
belongs  to  a  neighbor  ;  and  if  such  a  case  should  occur  between 
an  European  colony  and  an  American  republic,  it  would  come 
within  the  mean-ing  of  the  Monroe  Doctrine.  But  when  a 
mass  of  territory  has  never  been  divided  by  common  consent, 
but  has  been  in  dispute  from  the  beginning,  it  is  difficult  to 
see  how  the  United  States  can  reconcile  with  respect  for  the 
independence  of  other  powers  any  claim  on  its  part  to  a  pre- 
ponderant voice  in  the  settlement,  merely  because  the  disputed 
tract  happens  to  consist  of  American  soil.  The  case  arose 
when  President  Cleveland  in  his  special  message  of  Decem- 
ber 7,  1895,  assumed  a  right  to  investigate  and  determine  the 
boundary  between  British  Guiana  and  Venezuela,  and  then 
to  enforce  the  decision  on  Great  Britain  at  the  point  of  the 
sword.  Fortunately  wise  counsels  on  both  sides  prevented 
war  ;  and  by  the  Anglo- Venezuelan  treaty  of  1897,  negotiated 
in  close  agreement  with  the  United  States,  the  dispute  was 
referred  to  the  decision  of  an  impartial  board  of  arbitrators.1 

The  determination  of  the  United  States  to  exclude  the 
European  state-system  and  European  intervention  from  the 
American  continent  involves  the  exercise  of  its  own  author- 
ity in  the  last  resort,  when  chronic  misgovernment  and  per- 

1  Moore,  International  Law  Digest,  vol.  VI,  pp.  679-683. 


284  EIGHTS   AND   OBLIGATIONS 

sistent  wrong-doing  endanger  the  existence  of  civilized 
society  and  produce  external  complications.  In  Europe  in- 
ternational nuisances  are  mitigated,  if  not  removed,  by  the 
action  of  the  Great  Powers.  In  America  they  must  be 
abated  by  the  United  States.  President  Roosevelt  saw 
clearly  that  this  was  an  obligation  imposed  by  insistence  on 
the  Monroe  Doctrine.  In  the  crucial  case  of  Santo  Domingo 
he  carried  his  views  into  action  by  negotiating  an  arrange- 
ment, whereby  an  American  receiver-general  of  customs 
and  his  staff  collect  the  duties  which  are  practically  the 
whole  Dominican  revenue,  and  after  handing  over  forty-five 
per  cent  to  the  government  of  the  Republic,  apply  the  re- 
mainder to  the  repayment  of  its  debts.  In  a  remarkable  mes- 
sage to  the  Senate,  dated  February  15, 1905,  he  justified  inter- 
vention by  pointing  out  that  the  country  had  fallen  into  such 
a  condition  of  anarchy  that  a  year  before  no  less  than  three 
revolutions  were  proceeding  at  the  same  time.  Customs- 
revenues  were  pledged  to  foreign  creditors,  but  the .  first 
enterprise  of  an  insurrectionary  band  was  to  take  possession 
of  a  customhouse  and  use  the  dues  collected  there  to  finance 
their  enterprise.  If  European  powers  were  to  satisfy  their 
just  claims  they  would  have  not  only  to  seize  customhouses 
but  to  hold  them  for  a  long  time,  which  would  result  in  "  a 
definite  and  very  possibly  permanent  occupation  of  Domin- 
ican territory."  This  would  be  contrary  to  the  Monroe 
Doctrine  ;  and  yet  the  United  States  could  not  interfere  to 
prevent  it  without  "  virtually  saying  to  European  govern- 
ments that  they  would  not  be  allowed  to  collect  their  claims." 
The  only  alternative  consistent  with  dignity  and  honesty 
was  to  provide  some  other  means  of  satisfaction,  and  that 
involved  intervention  in  Dominican  affairs.  Recognition 
such  as  this  argument  contains  of  what  may  be  called  an 
international  police  jurisdiction  in  extreme  cases  is  a  nec- 
essary corollary  of  the  strict  enforcement  of  the  Monroe 
Doctrine,  and  a  condition  of  its  general  acceptance.  Those 
who  profit  by  it  "  must  accept  certain  responsibilities  along 


CONNECTED    WITH   EQUALITY  285 

with  the  rights  it  confers,  and  the  same  statement  applies 
to  those  who  uphold  it."  l 

§116 

The  growth  of  this  wholesome  feeling  that  the  Monroe 
Doctrine  involves  duties  as  well  as  powers  and  privileges  has 
been  accompanied  by  an  attempt  to  organize  The  Pan-American 
a  Pan-American  polity  in  such  a  way  that,  mowment- 
though  the  United  States  may  hold  a  position  of  leadership, 
it  exercises  no  paramount  authority.  Some  movement  in 
this  direction  was  necessary  to  prevent  the  division  of  the 
independent  states  of  the  American  continents  into  a  Latin- 
American  group  on  the  one  hand  and  on  the  other  the 
United  States  in  a  position  of  isolation.  In  the  earlier  part 
of  the  last  century  the  states  of  South  and  Central  America 
received  the  Monroe  Doctrine  with  joy.  They  were  dis- 
posed to  take  the  ground  that  it  amounted  to  a  pledge  of 
support  from  the  United  States  to  the  other  American  re- 
publics in  excluding  European  interference  from  the  politi- 
cal complications  of  the  American  continents  and  preventing 
any  European  state  from  acquiring  by  colonization  further 
dominion  in  the  New  World.  They  therefore  prop'osed  a  Con- 
gress at  Panama  in  1826  for  the  discussion  of  matters  of  com- 
mon interest.  When  the  Congress  met,  the  representatives  of 
only  four  Latin-American  states  were  present.  It  adjourned 
before  the  delegates  of  the  United  States  reached  their  des- 
tination, and  never  reassembled.  What  its  promoters  desired 
was  an  alliance  for  mutual  support  in  case  of  any  attempt 
on  the  part  of  European  powers  to  contravene  the  Monroe 
Doctrine  as  they  interpreted  it ;  whereas  the  United  States 
declined  to  tie  its  hands  by  treaty-pledges,  and  was  deter- 
mined to  preserve  its  freedom  of  action  in  any  emergency 
that  might  arise.  The  consequences  of  this  failure  were 
far-reaching.  Politically  the  Latin-American  states  were 

1  Moore,  International  Law  Digest,  vol.  VI,  pp.  518-529. 


286  RIGHTS   AND   OBLIGATIONS 

glad  to  seek  in  their  weakness  the  support  of  their  power- 
ful  northern  neighbor.  But  commercially  they  entered  into 
relations  with  Europe,  and  in  the  realm  of  ideas  they  were 
almost  exclusively  dominated  by  European  influences.1  After 
a  time  the  more  powerful  among  them  began  to  feel  distrust 
of  the  United  States.  They  resented  its  claim  to  hegemony 
in  the  New  World;  and  as  their  need  of  its  support  dimin- 
ished, their  jealousy  of  its  authority  increased.  The  extent 
of  this  change  of  attitude  varied  from  time  to  time  and  from 
state  to  state.  But  by  the  end  of  the  last  century  it  had 
grown  sufficiently  pronounced  and  sufficiently  general  to 
cause  uneasiness  at  Washington.  Hence  the  attempt  to 
organize  a  Pan-American  movement  in  which  all  the  inde- 
pendent states  of  the  New  World  should  take  part. 

This  new  and  important  development  of  transatlantic 
affairs  began  with  the  negotiations  that  led  to  the  assembly 
of  the  first  International  American  Congress  at  Washing- 
ton on  the  invitation  of  the  United  States.  It  sat  from 
October,  1889,  to  April,  1890,  and  led  to  the  establishment  of 
an  International  Bureau  of  Information,  which  still  exists  and 
does  valuable  work.  A  plan  of  arbitration  for  the  settle- 
ment of  differences  between  American  states  was  elaborated 
but  never  ratified,  and  a  survey  was  recommended  for  an  in- 
tercontinental railway  to  connect  North  and  South  America. 
In  addition,  various  projects  were  discussed  for  monetary 
union,  uniform  extradition  treaties,  a  uniform  system  of  port 
dues,  and  other  changes,  for  which,  as  events  soon  showed, 
opinion  was  by  no  means  ripe.  Six  years  afterwards  an 
attempt  to  hold  another  meeting  failed,  and  is  not  reckoned 
in  the  official  nomenclature.  The  second  International  Amer- 
ican Congress  was  held  in  the  City  of  Mexico  in  1901  and 
1902.  It  was  attended  by  representatives  of  all  the  Ameri- 
can republics,  and  succeeded  in  doing  much  solid  work.  It 
secured  the  adhesion  of  all  its  member-states  to  the  Hague 
Convention  of  1899  for  the  pacific  settlement  of  international 
disputes.  Nine  of  the  powers  represented  at  it  signed  a  treaty 
1  Moore,  International  Law  Digest,  vol.  VI,  pp.  416-420. 


CONNECTED   WITH   EQUALITY  287 

for  what  is  called  compulsory  arbitration  of  all  differences 
that  do  not  affect  their  national  independence  or  national 
honor,  and  seventeen  joined  in  another  treaty  whereby  they 
bound  themselves  to  send  before  the  Hague  Tribunal  all 
claims  for  pecuniary  loss  or  damage.  Resolutions  were 
passed  concerning  other  matters,  such  as  the  Pan-American 
Railway,  quarantine,  and  commerce,  and  the  International 
Information  Bureau  of  the  American  Republics  was  reorgan- 
ized. The  third  International  American  Congress,  held  at 
Rio  de  Janeiro  in  the  summer  of  1906,  proceeded  on  the  same 
prudent  lines,  and  showed  its  desire  for  peace  and  progress 
by  passing  a  resolution  recommending  the  nations  represented 
therein  to  strive  at  the  ensuing  Hague  Conference  for  a 
General  Arbitration  Convention.  The  chief  work  of  the 
fourth  Conference,  which  met  at  Buenos  Aires  in  August, 
1910,  was  to  provide,  under  the  name  of  the  Pan-American 
Union,  a  permanent  committee  of  the  International  American 
Conferences  with  wide  executive  and  secretarial  functions.1 
But  this  is  not  all.  An  indirect  result  of  the  negotiations 
and  adjustments  to  which  these  conferences  have  given  rise 
is  that  the  United  States  shows  a  disposition  to  consult  the 
more  powerful  and  progressive  Latin-American  states  in  the 
solution  of  difficulties  that  arise  from  the  misgovernment  and 
irresponsible  ambitions  of  some  of  the  others.  A  remarkable 
instance  of  this  new  attitude  occurred  in  1907,  when  the  direc- 
tion and  assistance  of  Mexico  as  well  as  the  United  States  was 
given  to  the  five  Central  American  republics  who  strove  to 
end  an  epoch  of  constant  wars  and  revolutions  by  establishing 
a  Central  American  Court  of  Justice,  to  which  they  bound 
themselves  to  submit  all  controversies  which  may  arise  be- 
tween them  such  as  diplomacy  finds  itself  unable  to  settle. 
They  also  covenanted  that  none  of  them  would  recognize  in 
the  others  any  government  that  came  into  power  as  the 
result  of  a  revolution,  as  long  as  it  had  not  been  legalized  by 

1  Moore,  International  Law  Digest,  vol.  VI,  pp.  599-604  ;  Supplement  to  the 
American  Journal  of  International  Law,  vol.  I,  pp.  299-308,  and  vol.V,  pp.  1-37. 


288  EIGHTS   AND    OBLIGATIONS 

the  freely  elected  representatives  of  the  people.  Their  agree- 
ment extended  to  many  other  matters  and  almost  amounted 
to  establishing  a  loose  confederation.1  It  will  be  interesting 
to  watch  the  result ;  but  the  point  to  notice  for  the  present 
is  the  joint  action  of  Mexico  and  the  United  States  in  the 
attempt  to  substitute  order  and  justice  for  constant  strife. 
Incidents  of  this  kind  may  be  the  precursors  of  a  joint  hege- 
mony of  the  leading  states  in  the  New  World  analogous  to 
the  joint  hegemony  of  the  Great  Powers  of  Europe. 

Prediction  would  be  folly.  All  we  can  venture  to  say  is 
that  the  old  order  founded  on  the  doctrine  of  the  equality  of 
all  independent  states  seems  breaking  up  before  our  eyes,  as 
three  hundred  years  ago  the  medieval  order  crumbled  be- 
neath the  gaze  of  the  men  of  the  Renaissance  and  the  Refor- 
mation. For  many  of  them  it  was  not  only  time-honored 
but  God-given.  Yet  we  can  see  now  that  universal  sover- 
eignty was  a  human  growth,  not  a  divine  institution.  When 
the  society  of  nations  outgrew  it,  another  order  more  suited 
to  the  new  international  life  of  the  period  had  to  take  its 
place.  Is  there  in  that  order  a  finality  which  its  predecessor 
lacked  ?  May  not  international  society  be  organizing  itself 
to-day  on  lines  inconsistent  with  that  absolute  equality  in 
all  things  which  still  seems  to  some  statesmen  and  publicists 
almost  a  sacred  dogma  ?  That  states  must  remain  equal  be- 
fore the  law  in  such  matters  as  jurisdiction,  proprietary 
rights,  and  diplomatic  privileges  is  evident.  But  it  seems 
almost  as  evident  that  they  cannot  remain  equal  in  what  we 
may  term  political  rights  and  social  standing,  now  that  the 
society  of  nations  has  become  self-conscious,  and  is  preparing 
itself  for  the  performance  of  legislative,  administrative,  and 
judicial  functions. 

§  HT 

The  principle  of  equality,  with  the  limitations  suggested 
in  previous  sections,  pervades  and  influences  the  whole  of 

1  Supplement,  to  the  American  Journal  of  International  Law,  vol.  II,  pp. 
219-265. 


CONNECTED    WITH    EQUALITY  289 

International  Law.  But  the  definite  rules  that  can  be  traced 
to  it  are  few  in  number  and  not  of  first-rate  importance. 
They  relate  to  matters  of  ceremony  and  eti-  , 

'  <f  Matters  of  cere- 

quette,  which  are  the  outward  signs  of  equality  m«ny  and  eti- 

.  i         quette  connected 

or  the  reverse,  ihe  principle  appears  to  de-  with  the  doctrine 
mand  that  all  independent  states  should  be 
treated  alike;  but  though  this  is  possible  in  some  matters, 
such  as  firing  salutes  or  supplying  guards  of  honor,  it  is  im- 
possible in  others,  such  as  the  order  of  sitting  at  a  state 
ceremonial  or  the  order  of  signing  an  international  document. 
To  meet  the  difficulties  occasioned  by  these  instances  and 
others  of  a  similar  kind,  rules  have  been  devised  which  recon- 
cile the  theoretical  equality  of  states  with  the  precedence 
which  it  is  necessary  should  exist  among  sovereigns  and  their 
representatives.  In  the  seventeenth  and  eighteenth  centuries 
an  exaggerated  importance  was  attached  to  questions  of  eti- 
quette. Readers  of  Macaulay's  History  will  remember  the 
graphic  description  given  in  Chapter  XXII  of  the  squabbles 
of  the  plenipotentiaries  assembled  at  the  Conference  of 
Ryswick;  and  those  who  are  desirous  of  acquiring  further 
information  on  the  subject  will  find  what  they  want  in  Ber- 
nard's Lectures  on  Diplomacy.  An  amusing  instance  of  the 
trivialities  out  of  which  disputes  could  grow  is  afforded  by 
Sir  John  Finett's  account  of  the  marriage  festivities  of  the 
Princess  Elizabeth,  daughter  of  James  I  of  England,  and 
Frederick,  the  Elector  Palatine.  The  worthy  knight  was 
master  of  the  ceremonies  at  the  English  Court,  and  evidently 
took  himself  and  his  official  duties  very  seriously.  We  sub- 
join a  short  quotation  from  his  Observations  touching  Forren 
Ambassadors,  preserving  the  original  spelling.  He  writes, 
"  At  this  time  the  French  and  Venetian  Ambassadors  invited 
to  the  marriage  were  not  free  from  Punctillios.  That  made 
an  effort  to  precede  the  Prince.  This  stood  upon  it  that 
they  were  not  to  sit  at  the  table  without  Chaires  (though 
the  Prince.  .  .  had  but  a  stoole,  the  Count  Palatine  and  the 
Princess,  onely  for  the  honour  of  the  day  having  Chayres) 


290  RIGHTS   AND   OBLIGATIONS 

and  insisting  upon  a  formality  that  the  Carver  was  not  to 
stand  above  him;  but  neither  of  them  prevailed  in  their 
reasonless  pretences."  All  ceremonial  disputes,  however, 
were  not  so  fantastic  or  so  easily  settled  as  this  one.  Occa- 
sionally they  led  to  bloodshed,  and  were  the  pretexts  if  not 
the  actual  causes  of  war,  as  when  in  1672  Charles  II  of  Eng- 
land commenced  hostilities  against  the  United  Provinces, 
ostensibly  because  one  of  his  royal  yachts  had  not  been 
properly  saluted  when  passing  through  the  Dutch  fleet 
near  the  coast  of  Zealand. 

§118 

But  it  must  not  be  supposed  that  etiquette  is  altogether 
unimportant,  or  that  states  in  modern  times  have  ceased 
Rules  of  prece-  to  care  for  it,  because  they  no  longer  go  to 
andThdr^pre-  war  about  such  matters  as  titles  and  salutes. 
It  is  necessary  for  the  dignified  and  orderly 
conduct  of.  international  affairs  that  ceremonies  should  exist 
and  that  rules  of  precedence  should  be  laid  down  and  ac- 
cepted. Courtesy  demands  that  states  should  abide  by  these 
rules  in  their  mutual  intercourse.  The  power  that  neglects 
them  degrades  itself  in  the  society  of  nations  to  the  level  of 
a  rude  boor  in  the  society  of  individuals.  Moreover  some  of 
them  are  symbolic.  The  honor  paid  to  the  flag,  for  instance, 
when  it  is  saluted  by  a  foreign  man-of-war  entering  a  friendly 
port,  is  something  more  than  a  piece  of  etiquette.  To  omit 
the  salute  would  imply  that  the  state  visited  was  inferior  to 
other  states  that  still  received  the  customary  honor;  and 
therefore  failure  to  fire  the  usual  number  of  guns  would  be 
justly  resented.  But  it  is  hardly  likely  that  such  a  case  will 
arise  in  future,  and,  if  it  does,  we  may  safely  say  that  the  peace 
of  nations  will  not  be  disturbed  by  it.  Many  of  the  old 
difficulties  have  been  settled  by  express  or  tacit  agreement, 
others  have  disappeared  with  lapse  of  time  and  changes  of 
circumstances,  and  with  regard  to  those  that  still  remain,  a 


CONNECTED   WITH   EQUALITY  291 

disposition  to  compromise  and  to  avoid  elevating  trifles  into 
matters  of  supreme  importance  happily  prevails. 

We  will  give  a  brief  sketch  of  existing  arrangements,  deal- 
ing first  with 

Rules  of  precedence  for  states  and  their  representatives. 

The  relative  rank  of  states  and  sovereigns  has  never  been 
determined  by  general  agreement.  A  fixed  order  of  pre- 
cedence is  quite  compatible  with  equality  before  the  law; 
but,  inasmuch  as  the  pride  of  rulers  is  involved  in  questions 
concerning  it,  no  such  order  has  ever  been  accepted.  The 
attempt  that  was  made  at  the  Congress  of  Vienna  of  1815 
to  classify  the  states  of  Europe  for  ceremonial  purposes 
failed  entirely.  Custom  has,  however,  given  birth  to  a  few 
rules.  It  used  to  be  held  that  states  which  enjoyed  royal 
honors  took  precedence  of  states  which  did  not.  But  as  the 
enjoyment  of  royal  honors  means  little  more  than  the  right  of 
sending  diplomatic  ministers  of  the  first  class,  and  that  right 
is  now  accorded  to  all  independent  states,  the  distinction 
based  upon  it  has  become  obsolete  and  unmeaning.  The 
rules  in  existence  now  are  as  follows  :  (a)  Fully  sovereign 
states  take  precedence  of  states  under  the  power  of  a  suze- 
rain. (6)  Precedence  is  accorded  to  the  Pope  by  Roman 
Catholic  states,  but  not  by  Protestant  states  or  by  states 
which  hold  the  faith  of  the  Greek  Church,  (c)  Sovereigns 
who  are  crowned  heads  take  precedence  of  those  who  are 
not,  such  as  Grand  Dukes  or  Electors  ;  but  powerful  repub- 
lics, such  as  the  United  States  and  France,  rank  along  with 
the  great  monarchical  states.  The  old  view  that  a  republic 
was  inferior  to  an  empire  or  a  kingdom  has  now  but 
little  influence  ;  but  two  centuries  ago  it  was  enormously 
strong.  The  Dutch  had  great  difficulty  in  making  good 
their  position  at  the  Congress  of  Miinster  and  on  other  occa- 
sions ;  and  it  required  all  the  firmness  of  Cromwell  to  secure 
for  the  Commonwealth  the  ceremonial  rank  accorded  to  the 
old  English  monarchy. 


292  EIGHTS   AND   OBLIGATIONS 

When  a  great  treaty  or  other  international  document  has 
to  be  signed  by  several  powers,  various  devices  are  resorted 
to  for  the  purpose  of  preventing  disputes  as  to  precedence. 
The  most  famous  of  them  is  the  Alternat,  a  usage  whereby 
the  signatures  alternate  in  a  regular  order,  or  in  one  deter- 
mined by  lot,  the  name  of  the  representative  of  each  state 
standing  first  in  the  copy  kept  by  that  state.  The  plan 
generally  adopted  now  is  to  sign  in  the  alphabetical  order  of 
the  names  of  the  powers  in  the  French  language. 

The  relative  rank  of  the  regular  diplomatic  agents  of  states 
is  determined  by  fixed  rules  that  have  received  general 
assent  and  are  acted  upon  by  all  civilized  nations.  We  will 
discuss  them  when  we  deal  with  Diplomacy  and  Negotiation.1 

§119 
We  will  now  proceed  to  consider 

Titles  and  their  recognition  by  other  states. 

Every  sovereign  may  take  whatever   title   is   conferred  on 

him  by  the  law  of  his  own  country ;  and  his  subjects  are, 

of  course,  bound  to  use  it  in  all  official  docu- 

Titles  and  their 

recognition  by  ments.  But  other  states  are  under  no  inter- 
national obligation  to  use  a  new  title  taken  by 
the  head  of  one  of  their  number.  They  may  decline  to  do 
so,  and  continue  in  their  official  intercourse  the  use  of  the 
old  title,  or  they  may  use  the  new  one  only  on  conditions. 
The  latter  course  is  sometimes  adopted  if  the  new  title  is 
accounted  higher  than  the  old.  It  is  then  sometimes  stipu- 
lated that  the  use  of  it  should  not  be  held  to  confer  a  higher 
degree  of  rank  and  precedence  upon  the  sovereign  who  has 
assumed  it.  These  arrangements  are  well  illustrated  by  the 
history  of  the  reception  and  acknowledgment  abroad  of  the 
imperial  title  of  the  Czar  of  Russia.  Peter  the  Great  pro- 
claimed himself  Emperor  of  all  the  Russias  in  1701.  Eng- 

i  See  §  123. 


CONNECTED    WITH    EQUALITY  293 

land  was  the  only  power  that  recognized  the  new  title  at 
once.  Prussia  did  not  acknowledge  it  till  1723,  the  German 
Empire  till  1746,  Spain  till  1759,  and  Poland  till  1764.1 
When  France  recognized  it  in  1745,  she  stipulated  that  it 
should  make  no  change  in  the  ceremonies  formerly  observed 
between  the  two  courts. 

§120 

The  last  matters  we  have  to  consider  in  connection  with 
equality  and  its  outward  signs  are 

Maritime  ceremonials. 

These  are  salutes  between  ships  or  between  ships  and  forts. 
They  are  carried  on  by  firing  artillery  or  striking  sails. 
The  law  of  each  state  prescribes  their  details  Marlti,ne  cere- 
as  between  its  own  vessels.  As  between  ves-  monlals- 
sels  of  different  states,  or  between  vessels  of  one  state  and 
forts  and  land  batteries  of  another,  matters  are  regulated 
by  express  stipulations  or  by  international  custom.  In  the 
days  when  states  claimed  dominion  over  portions  of  the  high 
seas  and  saluting  first  was  looked  upon  as  an  acknowledg- 
ment of  superiority,  great  disputes  arose  about  them. 
British  cruisers  were  instructed  to  capture  .vessels  that 
refused  to  give  proper  honor  to  their  flag  in  the  seas  claimed 
as  part  of  the  territorial  possessions  of  the  Crown.2  Philip 
II  of  Spain  forbade  his  vessels  to  salute  first  when  they 
passed  the  cities  and  forts  of  other  sovereigns.  France  and 
Russia,  hopeless  of  overcoming  difficulties,  agreed  by  treaty 
in  1787  that  in  future  there  should  be  no  salutes  between 
their  vessels  either  in  port  or  on  the  high  seas,  and  a  similar 
Convention  was  negotiated  in  1829  between  Russia  and  Den- 
mark.3 In  modern  times  saluting  is  regarded  merely  as  an 

1  Halleck,  International  Law  (Baker's  ed.),  vol.  I,  p.  126. 

2  Walker,  Science  of  International  Law,  pp.  167-171. 

3  D'Hauterive  and  De  Cussy,  Becueil  des  Traites,  part  I,  vol.  Ill,  p.  262, 
and  part  II,  vol.  II,  p.  70. 


294  RIGHTS   AND    OBLIGATIONS 

act  of  courtesy;  and  treaties  and  custom  have  given  birth 
to  a  number  of  rules  which  meet  with  general  acceptance. 
The  chief  of  them  are  as  follows:  (a)  A  ship  of  war  entering 
a  foreign  port  or  passing  a  fort  salutes  first,  unless  the  sov- 
ereign or  his  ambassador  is  on  board,  in  which  case  the  port 
or  fort  salutes  first.  In  any  case  the  salute,  which  is  held 
to  be  an  honor  paid  to  the  national  flag,  is  returned  gun  for 
gun,  by  a  fort  if  there  is  one  in  the  place,  if  not  by  a  ship 
of  war.  (6)  When  public  vessels  of  different  nationalities 
meet,  the  ship  or  squadron  commanded  by  the  officer  inferior 
in  rank  salutes  first,  and  the  salute  is  returned  gun  for  gun. 

(c)  No  international  salutes  are  to  exceed  twenty-one  guns. 

(d)  Merchant  vessels  salute  ships  of  war  by  lowering  the 
topsails,  if  they   have   no  guns  on  board.     Sometimes   the 
flag  is  lowered,  but  this  is  regarded  by  most  states  as  derog- 
atory to  their  dignity.1 

1  Perels,  Seerecht,  pp.  139-143. 


CHAPTER  V 

RIGHTS    AND    OBLIGATIONS    CONNECTED    WITH    DIPLOMACY 

§121 

THE  affairs  of   nations  could  not  be  conducted  without 
mutual  intercourse.     Every  state,  however  barbarous,  recog- 
nizes this,  and  even  savage  tribes  respect  the  Diplomatic  inter- 
persons  of  heralds  and  envoys.      But   among  "hTreri-7' 
the  family  of  civilized  nations  who  are  subjects  dent  embassies. 
of  International  Law  intercourse  is  carried  on  to  a  great  and 
steadily  increasing  extent ;  and  with  its  growth  has  grown 
a  system  of  regulating  it  by  special  formalities,  employing 
special  agents  to  carry  it  on,  and  granting  them  special  im- 
munities. 

In  the  Middle  Ages  when  the  intercourse  between  peoples 
was  comparatively  meagre,  negotiations  were  only  occasional 
incidents  in  the  life  of  a  state.  They  were  carried  on  by 
envoys,  sent  abroad  to  do  the  special  business  on  hand  and 
expected  to  return  as  soon  as  it  was  finished.  The  service 
was  often  one  of  difficulty  and  danger,  for  though  the  per- 
sons of  ambassadors  were  held  sacred  in  the  country  to  which 
they  were  sent,  they  received  little  protection  in  the  states 
they  passed  through  on  the  way.  There  were  plenty  of 
robber  bands  for  them  to  guard  against  and  plenty  of  physi- 
cal obstacles  for  them  to  overcome.1  The  revival  of  com- 
merce and  letters  at  the  time  of  the  Renaissance,  and  the 
immense  impetus  given  to  human  activity  by  the  discovery 
of  the  New  World,  made  intercourse  between  states  more 

1  Bernard,  Lectures  on  Diplomacy,  pp.  121,  122. 
295 


296  RIGHTS   AND   OBLIGATIONS 

common  and  more  necessary  than  before.  But  the  intro- 
duction of  the  practice  of  sending  permanent  ambassadors 
to  reside  at  foreign  courts  is  due  more  to  statecraft  than  to 
utility.  It  began  in  the  fourteenth  century  among  the  great 
Italian  republics ;  but  Louis  XI  of  France,  who  reigned 
from  1461  to  1483,  is  said  to  have  been  the  first  sovereign 
in  western  Europe  to  resort  to  it,  his  design  being  to  have 
a  sort  of  chartered  spy  at  the  court  of  each  of  his  powerful 
neighbors.  After  a  time  the  convenience  of  the  practice 
secured  its  general  adoption,  and  by  the  middle  of  the  seven- 
teenth century  it  had  become  recognized  as  the  regular 
method  of  carrying  on  diplomatic  intercourse.  But  it  had 
to  win  its  way  against  a  mass  of  jealousy  and  suspicion, 
caused  largely  by  the  unscrupulous  character  of  the  early 
diplomatists.  "  If  they  lie  to  you,  lie  still  more  to  them," 
said  Louis  XI  to  his  ambassadors.1  k'  An  ambassador,"  said 
Sir  Henry  Wotton  in  a  punning  epigram,  "  is  a  person  who 
is  sent  to  lie  abroad  for  the  benefit  of  his  country."  Henry 
VII  of  England  is  praised  by  Coke  as  "  a  wise  and  politique 
King  "  because  he  would  not  suffer  ambassadors  from  other 
states  to  remain  at  his  court  after  their  immediate  business 
was  finished ; 2  and  as  late  as  1660  threats  were  uttered  in 
the  Polish  Diet  that  the  French  ambassadors  would  be 
treated  as  spies  if  they  did  not  return  home.3  But  the 
new  system  became  a  necessity  as  the  complexity  of  inter- 
national affairs  increased  in  the  seventeenth  century ;  and 
in  spite  of  the  unfavorable  opinion  of  Grotius4  who  says 
that  resident  embassies  may  be  excluded  by  states,  and 
speaks  of  them  as  "  now  common  but  not  necessary,"  it 
grew  and  prospered,  and  many  and  various  observances 
grew  up  with  it  and  were  gradually  embodied  in  Interna- 
tional Law. 

1  Flassan,  Diplomatic  Fran^aise,  vol.  I,  p.  247. 

2  Fourth  Institute,  ch.  XXVI. 

8  Ward,  History  of  the  Law  of  Nations,  vol.  II,  p.  484. 
4  De  Jure  Belli  ac  Poet's,  bk.  II,  ch.  xviii,  iii. 


CONNECTED   WITH  DIPLOMACY  297 

§122 

At  first  diplomatic  ministers  were  of  one  kind,  and  were 
usually  called  ambassadors  and  were  supposed  to  represent 
the  person  as  well  as  the  affairs  of  their  sov-  Development  of 

T         •       -\ri       f     T*  •     i        i  j     .LI         different  kinds  of 

ereign.      Louis  XI  of  trance   introduced   the  dipiomatlc min. 
custom  of  sending  persons  of  an  inferior  sort,  isters- 
termed   agents,  to  transact  his  affairs  without  representing 
his   person.     His  diplomacy  frequently  worked   in   secret. 
He  sometimes  sent  his  barber  on  an  occult  mission,  and  it 
is  obvious  that  his  purpose  would  have  been  defeated  by  an 
exhibition  of  state  ceremonial. 

Thus  matters  stood  at  the  beginning  of  the  seventeenth 
century,  when  permanent  legations  became  common.  Soon 
after  we  find  the  agent  disappearing  from  the  ranks  of 
diplomatic  ministers,  and  becoming  merely  a  person  ap- 
pointed by  a  prince  to  manage  his  private  business  at  a  for- 
eign court.  But  the  distinction  between  the  representative 
of  his  sovereign's  person  and  the  representative  of  his  sov- 
ereign's affairs  continued  to  be  made.  The  first  was  called 
an  ambassador,  the  second  an  envoy  or  an  envoy  extraordi- 
nary. Below  the  envoy  in  rank  came  at  the  beginning  of 
the  eighteenth  century  a  third  class  called  residents.  Vattel 
says  of  them  that  their  "  representation  is  in  reality  of  the 
same  nature  as  that  of  the  envoy," 1  but  custom  undoubtedly 
ranked  them  below  the  second  order  of  diplomatic  ministers. 
Sometimes  they  had  no  letters  of  credence,  and  in  that  case 
their  mission  must  have  been  of  a  semi-private  character. 
To  these  three  orders  of  diplomatic  agents  was  added  in  the 
eighteenth  century  a  fourth,  that  of  ministers.  According  to 
Vattel,  this  was  done  to  avoid  the  constant  disputes  about 
precedence  which  seem  to  have  taken  up  no  small  portion 
of  the  time  and  energy  of  the  diplomatists  of  the  seventeenth 
and  eighteenth  centuries.  He  says,  "The  minister  represents 
his  master  in  a  vague  and  indeterminate  manner,  which  can- 

i  Droit  des  Gens,  bk.  IV,  §  73. 


298  RIGHTS  AND   OBLIGATIONS 

not  be  equal  to  the  first  degree,  and  consequently  makes  no 
difficulty  in  yielding  to  an  ambassador.  He  is  entitled  to  all 
the  regard  due  to  a  person  of  confidence  to  whom  the  sover- 
eign commits  the  care  of  his  affairs,  and  he  has  all  the  rights 
essential  to  the  character  of  a  public  minister."1  The  very 
essence,  then,  of  a  minister  was  the  indeterminate  character 
of  his  position.  He  was  "  not  subjected  to  any  settled  cere- 
mony," and  we  cannot  therefore  rank  him  with  the  other 
kinds  of  diplomatic  agents.  The  only  thing  absolutely  fixed 
about  him  was  that  he  came  below  an  ambassador  in  order  of 
precedence.  Sometimes  he  was  called  minister  plenipoten- 
tiary, a  title  which  seems  to  have  implied  higher  rank  than 
that  of  simple  minister.2 

§123 

The  foregoing  remarks  point  to  the  confusion  that  existed 
a  hundred   years    ago  as    to    the   relative   rank   of   diplo- 
matic  agents,  and  demonstrate  clearly  the  need 


of  diplomatic         of   some   authoritative   classification.     At  the 

ministers.  . 

Congress  of    Vienna  in  1815  an  attempt   was 
made  to  establish  by  general  consent  a  regular  order  of  rank 
and  precedence.     The  result  was  the  establishment  of  the 
three  following  classes:  — 
(a)  Ambassadors   and  Papal   Legates   or   Nuncios.     These 

represented  the  person  and  dignity  of  their  sovereign 

as  well  as  his  affairs. 
(J)  Envoys,  Ministers  Plenipotentiary,  and  others  accredited 

to  sovereigns. 
(c)  Charges  d'  Affaires,  accredited  not  to  sovereigns,  but  to 

Ministers  of  Foreign  Affairs.3 

This  order,  however,  failed  to  reconcile  every  difference.  It 
had  been  agreed  that,  while  all  the  diplomatic  agents  belong- 
ing to  a  class  should  rank  before  any  of  the  class  below  it, 

1  Droit  des  Gens,  bk.  IV,  §  74. 

2  C.  de  Martens,  Guide  Diplomatique,  §  11. 

8  Hertslet,  Map  of  Europe  by  Treaty,  vol.  I,  pp.  62,  63. 


CONNECTED   WITH   DIPLOMACY  299 

within  a  class  precedence  should  be  determined  according  to 
the  length  of  the  stay  of  each  individual  diplomatist  at  the 
court  to  which  he  was  accredited.  But  in  practice  it  was 
found  that  the  Great  Powers  were  unwilling  to  allow  the 
envoys  and  ministers  of  minor  states  to  take  precedence  of 
their  representatives  of  the  second  class.  Accordingly  the 
Congress  of  Aix-la-Chapelle  of  1818  created  a  class  of  min- 
isters resident  accredited  to  sovereigns,  which  it  interpolated 
between  the  second  and  third  of  the  classes  agreed  upon  at 
Vienna.1  The  minor  states  could  thus  have  ministers,  and 
yet  avoid  making  a  claim  to  precedence  for  them  over  the 
ministers  of  the  Great  Powers.  This  device  seems  to  have 
been  successful.  The  order  and  rank  of  diplomatic  agents 
is  now  settled  by  a  general  agreement  to  recognize  the  four 
classes  above  described,  and  to  regulate  precedence  in  each 
class  by  length  of  residence.  Each  state  sends  what  kind 
of  representative  it  pleases,  the  only  restriction  being  the 
now  obsolete  one  that  none  but  states  enjoying  royal  honors 
can  send  ambassadors.  States  agree  as  to  the  rank  of  their 
respective  agents  at  one  another's  courts,  and  send  to  every 
neighbor  a  representative  of  the  same  class  as  the  represent- 
ative they  receive  from  it.  Thus  when  in  1893  the  United 
States  resolved  for  the  first  time  in  its  history  to  -employ 
diplomatic  agents  of  the  first  class,  it  accredited  ambassa- 
dors to  Great  Britain,  France,  and  a  few  other  great  powers 
who  were  willing  to  raise  their  ministers  at  Washington  to 
ambassadorial  rank. 

Ambassadors  used  to  have  a  right  to  a  solemn  entry  into 
the  capital  of  the  state  to  which  they  were  sent.  This  took 
place  at  the  beginning  of  their  mission,  and  was  made  an 
occasion  of  great  display.  The  ambassadors  of  other  states 
joined  in  the  procession  and  sometimes  quarrelled  for  pre- 
cedence. For  instance,  in  1661  an  armed  conflict  took  place 
on  Tower  Hill,  London,  between  the  retinues  of  the  French 
and  Spanish  ambassadors,  on  account  of  the  attempt  of  each 
1  Hertslet,  Map  of  Europe  by  Treaty,  vol.  I,  p.  575. 


300  RIGHTS   AND   OBLIGATIONS 

to  follow  next  to  the  king  in  the  procession  formed  for  the 
solemn  entry  of  the  representative  of  Sweden.  In  the 
course  of  the  struggle  a  Spaniard  hamstrung  the  horses  of 
the  French  ambassador's  coach,  and  thus  enabled  the  Span- 
ish coach  to  take  the  coveted  place;  but  reparation  was 
afterwards  obtained  by  Louis  XIV,  who  threatened  war 
should  it  be  refused.1  The  discontinuance  of  the  practice 
of  solemn  entry  renders  such  scenes  impossible  now.  Am- 
bassadors, as  representing  the  person  and  dignity  of  their 
sovereign,  are  held  to  possess  a  right  of  having  personal  inter- 
views, whenever  they  choose  to  demand  them,  with  the  sov- 
ereign of  the  state  to  which  they  are  accredited.  But  modern 
practice  grants  such  interviews  on  suitable  occasions  to  all 
representatives  of  foreign  powers,  whatever  may  be  their  rank 
in  the  diplomatic  hierarchy.  Moreover,  the  privilege  can 
have  no  particular  value,  because  the  verbal  statements  of  a 
monarch  are  not  state  acts.  Formal  and  binding  interna- 
tional negotiations  can  be  conducted  only  through  the  minis- 
ter of  foreign  affairs. 

§124 

Every  independent  member  of  the  family  of  nations  pos- 
sesses to  the  full  the  right  of  sending  diplomatic  ministers 

Sovereign  states         tO     °tlier     states5     but    &     belongs     to     part-SOV- 

possess  the  right     ereign  communities  only  in  a  limited  form,  the 

of  legation  .  J 

fuiiy;  part-sov-  exact  restrictions  upon  the  diplomatic  activity 
sessfit  to  aTim?  of  each  being  determined  by  the  instrument 
that  defines  its  international  position.  Egypt, 
for  instance,  under  the  Sultan's  firmans  of  1866  and  1867 
may  negotiate  commercial  and  postal  conventions  with  for- 
eign powers,  provided  they  do  not  contain  political  arrange- 
ments; and  to  this  condition  the  firman  of  1879  added  the 
further  obligation  of  communicating  them  to  the  Porte  be- 
fore they  are  published.2  In  the  case  of  the  looser  sort  of 

1  Ward,  History  of  the  Law  of  Nations,  vol.  II,  pp.  458-462. 

2  Holland,  European  Concert  in  the  Eastern  Question,  pp.  116-128. 


CONNECTED   WITH    DIPLOMACY  301 

confederations  the  treaty-making  and  negotiating  power  of 
the  states  that  comprise  them  is  limited  by  the  federal 
pact.  Thus  each  member  of  the  German  Confederation 
which  existed  from  1815  to  1866  was  bound  not  to  do  any- 
thing in  its  alliances  with  foreign  powers  against  the  security 
of  the  Confederation  or  any  member  of  it,  and  when  war  was 
declared  by  the  Confederation  no  member  of  it  could  nego- 
tiate separately  with  the  enemy.1  Permanently  neutralized 
states  can  make  no  diplomatic  agreements  that  may  lead 
them  into  hostilities  for  any  other  purpose  than  the  defence 
of  their  own  frontiers.  Belgium,  for  instance,  though  she 
took  part  in  the  Conference  of  London  of  1867,  which 
decreed  and  guaranteed  the  neutralization  of  Luxemburg, 
did  not  sign  the  treaty  of  guarantee  because  it  bound  the 
signatory  powers  to  defend  the  Duchy  from  wanton  attack. 

§125 

It  can  hardly  be  said  that  states  are  under  an  obligation  to 
send  and  receive  diplomatic  agents,  but,   as  without  them 
official  international  intercourse  would  be  im-  The  rupture  of 
possible,  any  important  state  that  declined  to  diplomatic  reia- 

tions  Is  a  serious 

make  use  of  them  would  ipso  facto  put  itself  out  8teP' which  eener- 

ally  ends  in  war. 

of  the  family  of  nations  and  beyond  the  pale  of 
International  Law.  No  civilized  state  is  likely  to  wish  to  do 
this;  and  therefore  we  may  assume  with  confidence  that  all 
such  states  will  exercise  their  right  of  legation.  But  a  state 
may  for  grave  cause  temporarily  break  off  diplomatic  inter- 
course with  another  state.  Such  an  act  is,  however,  a  marked 
affront,  and  is,  therefore,  the  sign  of  a  rupture  that  only 
just  falls  short  of  war,  and  indeed  may  lead  to  it.  For  ex- 
ample, in  January,  1793,  Great  Britain  broke  off  diplomatic 
intercourse  with  France  owing  to  the  execution  of  Louis  XVI 
on  the  21st  of  that  month,  and  ordered  Chauvelin,  the  French 
ambassador,  to  leave  the  country.  A  few  days  later,  on 

1  Wheaton,  International  Law,  §  47. 


302  RIGHTS   AND   OBLIGATIONS 

February  the  8th,  France  commenced  war.1  When  states 
have  previously  determined  upon  war,  the  withdrawal  of  the 
diplomatic  representatives  on  both  sides  is  an  invariable  pre- 
liminary or  concomitant  of  the  first  acts  of  hostility.  But 
unless  such  a  resolve  has  been  taken,  it  is  possible  that  the 
displeasure  shown  by  the  cessation  of  diplomatic  intercourse 
may  pass  over  without  a  rupture  of  peaceful  relations.  This 
occurred  in  connection  with  Servia  in  1903.  After  the 
assassination  of  King  Alexander  in  the  June  of  that  year,  and 
the  installation  of  some  of  his  murderers  in  high  political 
office,  the  Great  Powers  withdrew  their  ministers  in  order  to 
mark  their  sense  of  the  enormity  of  the  crime.  Great  Britain 
did  not  resume  diplomatic  relations  till  June,  1906,  by  which 
time  the  murderers  had  been  deprived  of  influence  in  the 
state,  at  least  ostensibly.  But  no  hostilities  took  place  during 
the  three  years'  interval.  It  is  obvious,  however,  that  this 
mode  of  showing  displeasure  is  not  suited  to  disagreements 
between  two  states  of  the  first  rank;  for  the  amount  of 
business  requiring  the  attention  of  their  representatives  at 
the  seat  of  each  other's  government  is  too  great,  and  its 
nature  too  important,  for  it  to  be  allowed  to  accumulate  or 
remain  undone  with  impunity. 

§126 

Though  the  suspension  of  all  intercourse  is  a  sign  of  rup- 
ture, yet  a  state  may  without  offence  refuse  to  receive  a 
But  a  state  ma  particular  individual  as  diplomatic  representa- 
without  offence  tive  from  one  of  its  neighbors,  if  it  has  wood 

refuse  on  good 

grounds  to  receive  reason  for  objecting  to  him.     The  fact  that  he 

a  particular  indi-         •  111  •  ,  i  •  <•   ,  i 

viduai,  or  ask  for  is  personally  obnoxious  to  the  sovereign  of  the 
country  to  which  it  is  proposed  to  send  him  is 
accepted  as  sufficient  ground  for  a  refusal.  Thus  France 
declined  to  receive  the  Duke  of  Buckingham  as  ambassador 
extraordinary  from  Charles  I  of  England,  because  on  a 

1  Hammond,  Charles  James  Fox,  pp.  268,  269. 


CONNECTED   WITH   DIPLOMACY  303 

previous  visit  to  the  French  Court  he  had  posed  as  an  ardent 
lover  of  the  Queen.1  But  should  the  objection  raised  be 
deemed  unreasonable,  the  government  that  proposed  to  send 
the  representative  is  not  bound  to  acquiesce  in  his  rejec- 
tion. A  case  of  this  kind  occurred  in  1885,  when  Austria 
declined  to  receive  Mr.  A.  M.  Keiley  as  minister  of  the 
United  States,  on  the  ground  that  Tiis  wife  was  a  Jewess  and 
that  he  was  married  to  her  by  civil  contract  only.  President 
Cleveland  declined  to  cancel  his  appointment,  and  on  his 
resignation  made  no  new  nomination,  but  intrusted  the  in- 
terests of  America  at  Vienna  to  the  secretary  of  legation 
acting  as  charge  d'affaires  ad  interim? 

Another  reason  for  rejecting  a  diplomatic  representative 
is  public  and  pronounced  hostility  on  his  part  to  the  people 
or  institutions  of  the  country  to  which  he  is  accredited. 
The  same  Mr.  Keiley  who  was  rejected  by  the  government 
of  Austria-Hungary  had  previously  been  refused-  for  much 
better  reasons  by  the  Italian  kingdom.  He  had  spoken  at  a 
public  meeting  against  the  destruction  of  the  temporal  power 
of  the  Pope;  and  as  its  overthrow  was  effected  by  the  arms 
of  Italy,  and  in  consequence  relations  of  pronounced  bitter- 
ness existed  between  the  Papacy  and  the  Italian  Government, 
it  was  hardly  to  be  supposed  that  his  mission  could  be  con- 
ducted in  an  acceptable  manner.3  This  case,  like  the  other 
that  occurred  concerning  the  same  candidate  for  diplomatic 
honors,  shows  the  wisdom  of  the  custom  that  the  appointing 
state  should  inquire  beforehand  whether  the  person  it  pro- 
poses to  send  is  acceptable  to  the  government  to  which  it  is 
proposed  to  send  him.  The  United  States  now  follows  this 
practice  with  regard  to  ambassadors. 

If  a  proposed  representative  is  one  of  the  subjects  of  the 
state  to  which  he  is  sent,  it  may  decline  to  receive  him  on  the 

1  Gardiner,  England  under  the  Duke  of  Buckingham  and  Charles  7,  vol. 
I,  pp.  182,  183,  329. 

2  Moore,  International  Law  Digest,  vol.  IV,  pp.  481-484. 

.  480. 


304  EIGHTS   AND   OBLIGATIONS 

ground  that  the  immunities  of  an  ambassador  are  incompatible 
with  the  duties  of  a  citizen.  But,  should  he  be  received,  full 
diplomatic  privileges  must  be  accorded  to  him.  His  country 
can  refuse  him,  or  accept  him  on  conditions  if  such  conditions 
are  agreed  to  by  the  power  that  sent  him,  but  having  once 
received  him  unconditionally,  it  is  not  at  liberty  to  exercise 
any  authority  over  him  on  the  ground  that  he  is  a  subject  and 
therefore  amenable  to  its  law.  This  point  was  raised  in  the 
case  of  Sir  Halliday  Macartney,  a  British  subject  who  acted 
as  secretary  to  the  Chinese  legation  in  London.  An  attempt 
was  made  in  1890  to  compel  him  to  pay  local  rates  on  the 
house  that  he  occupied;  but  it  was  decided  that  the  claim 
could  not  be  sustained,  since  he  had  been  received  without 
conditions  in  his  diplomatic  capacity  and  was  therefore  en- 
titled to  full  diplomatic  immunities.1 

Just  as  a  state  may  without  offence  decline  to  receive  any 
particular  person  as  the  diplomatic  representative  of  another 
state,  if  it  has  reasonable  grounds  for  its  refusal,  so  it  may 
demand  the  recall  of  a  resident  ambassador  or  other  agent 
who  has  made  himself  obnoxious  to  the  government  of  the 
country  or  the  head  of  the  state.  Such  a  request  is  granted, 
if  there  is  good  reason  for  it,  and  if  the  ambassador's  coun- 
try desires  to  remain  on  friendly  terms  with  the  country 
that  demands  his  recall ;  but  the  better  opinion  appears 
to  be  that  it  is  under  no  obligation  to  recall  merely  because 
it  is  informed  that  the  other  government  desires  to  be  rid 
of  the  individual  in  question.2  It  has  a  right  to  ask  for 
reasons  and  to  judge  of  them;  and  though,  if  it  deems  them 
inadequate,  it  cannot  compel  the  authorities  of  the  other 
state  concerned  to  carry  on  diplomatic  business  with  the 
agent  whose  conduct  is  impugned,  it  may  decline  to  order 
him  home,  and  may  mark  its  sense  of  his  dismissal  by  leav- 
ing the  embassy  for  a  time  in  charge  of  an  inferior  member 
of  its  diplomatic  service.  The  early  history  of  the  United 

1  London  Times,  Feb.  25,  1890. 

2  Message  of  President  Harrison,  Jan.  25,  1892. 


CONNECTED   WITH  DIPLOMACY  305 

States  affords  an  instance  of  recall  of  a  diplomatic  min- 
ister on  a  demand  caused  by  the  most  persistent  and  out- 
rageous provocation.  M.  Genet,  the  minister  of  the  French 
Republic,  openly  violated  the  neutrality  of  the  United  States 
in  the  war  between  England  and  revolutionary  France.  He 
even  attempted  to  set  up  French  prize  courts  within  Ameri- 
can jurisdiction;  and,  instead  of  heeding  the  remonstrances 
addressed  to  him  by  the  administration  of  Washington,  en- 
deavored to  stir  up  popular  feeling  against  the  President 
and  his  cabinet.  At  last  a  request  was  made  for  his  recall; 
and  the  French  Government  not  only  acceded  to  it  in  1794, 
but  asked  that  he  and  his  agents  might  be  sent  home  under 
arrest,  an  extreme  step  which  Washington  very  wisely  de- 
clined to  take.1  In  a  much  more  recent  case  dismissal  was 
added  to  the  demand  for  recall.  In  the  course  of  the  presi- 
dential campaign  of  1888  Lord  Sackville,  the  British  min- 
ister at  Washington,  received  a  communication  purporting 
to  come  from  a  Mr.  Murchison,  a  naturalized  American  citi- 
zen of  British  birth  resident  in  California.  The  letter  asked 
information  from  him  as  to  the  friendliness  of  the  existing 
administration  towards  Great  Britain,  and  intimated  that 
the  vote  of  the  writer  depended  upon  the  reply,  which 
should  "be  treated  as  entirely  secret."  Lord  Sackville 
answered,  in  a  communication  marked  "  Private,"  that  it 
was  impossible  to  predict  the  course  that  Mr.  Cleveland 
would  take  towards  Great  Britain  if  he  were  reflected,  but 
that  in  the  writer's  belief  the  party  in  power  was  desirous 
of  maintaining  friendly  relations  with  the  mother  country. 
The  letter  of  inquiry  turned  out  to  be  a  trick  concocted  for 
election  purposes.  It  was  published  along  with  Lord  Sack- 
ville's  reply,  and  distributed  broadcast  as  a  campaign  docu- 
ment by  the  party  opposed  to  the  Cleveland  administration. 
In  the  midst  of  the  excitement  caused  by  it  the  British 
minister  granted  an  interview  to  a  representative  of  a  New 
York  paper,  in  the  course  of  which  he  is  reported  to  have 

1  Moore,  International  Law  Digest,  vol.  IV,  pp.  485-488. 
x 


306  BIGHTS  AND  OBLIGATIONS 

said,  "  Of  course  I  understand  that  both  the  action  of  the 
Senate  and  the  President's  letter  of  retaliation  were  for 
political  effect."  Three  days  after  he  wrote  to  Mr.  Bayard, 
then  secretary  of  state,  to  disclaim  any  intention  of  impugn- 
ing the  action  of  the  executive.  In  these  circumstances 
his  recall  was  demanded  by  telegraph  on  the  27th  of  Octo- 
ber. His  government  felt  unable  to  come  to  a  decision  till 
it  had  been  placed  in  possession  of  the  allegations  against 
him  and  the  evidence  on  which  they  were  founded  ;  but 
without  further  delay  he  was  dismissed  and  his  passport 
sent  to  him  on  the  30th  of  October.  The  British  minister 
acted  with  an  absence  of  discretion  remarkable  in  an  experi- 
enced diplomatist.  But  he  was  deceived  by  a  dishonorable 
artifice  ;  and  it  did  not  become  the  country  where  the  consid- 
eration due  to  a  foreign  representative  had  been  so  strangely 
neglected  to  hurry  him  out  of  its  territory  before  his  own 
government  had  an  opportunity  of  examining  the  evidence 
against  him.  Moreover,  a  new  terror  will  be  added  to 
official  life,  if  the  case  is  to  be  taken  as  a  precedent  for  sur- 
rounding private  communications  with  the  caution  hitherto 
reserved  for  public  statements.1 

§  127 

Certain  formal  observances  have  grown  up  with  regard 
to  the  reception  and  departure  of  diplomatic  ministers. 
Commencement  They  receive  from  their  own  governments 
dj'piomaTilTmis-11  °*  various  documents,  which  confer  on  them  their 
•ions,  and  the  cere-  official  character,  and  give  them  information 

monies  connected 

therewith.  as  to   the  questions  with   which  they  are  ex- 

pected to  deal  and  the  methods  to  be  followed  in  negoti- 
ating. First  and  most  important  among  these  documents 
is  the  letter  of  credence.  It  sets  forth  the  name  of  the 
diplomatic  agent  and  the  general  object  of  his  mission, 

1  British  State  Papers,  United  States.  Nos.  3  and  4  (1888)  ;  Moore,  Inter- 
national Law  Digest,  vol.  IV,  pp.  536-648. 


CONNECTED   WITH   DIPLOMACY  307 

and  requests  that  he  may  be  received  with  favor  and  have 
full  credit  given  to  what  he  says  on  behalf  of  his  country. 
It  is  generally  addressed  by  the  sovereign  who  sends  to  the 
sovereign  who  receives  the  minister;  but  in  the  case  of  a 
charge  d'affaires  it  is  written  by  foreign  minister  to  foreign 
minister;  and  when  the  head  of  a  state  is  a  temporary  presi- 
dent or  other  elected  officer,  letters  of  credence  are  addressed 
not  to  him,  but  to  the  state  of  which  he  is  for  the  time  being 
the  chief  ruler.1  Power  to  act  generally  on  behalf  of  his 
country  is  granted  by  the  letter  of  credence  a  diplomatist 
takes  with  him  to  the  court  where  he  is  to  reside.  But 
agents  charged  with  special  business  receive  a  document 
called  their  full  powers,  which  is  signed  by  the  sovereign 
whom  they  represent  and  countersigned  by  his  minister  for 
foreign  affairs.  The  most  common  of  these  documents  are 
the  general  full  powers,  which  give  authority  to  their  pos- 
sessor to  negotiate  with  each  and  all  the  states  represented 
at  some  congress  or  conference.  They  are  generally  deliv- 
ered to  the  presiding  plenipotentiary  at  the  first  sitting  of 
the  conference,  or  exchanged  and  verified  by  the  diploma- 
tists present,  who,  not  being  accredited  to  a  sovereign  or  his 
foreign  minister,  require  no  letters  of  credence.  A  duly 
accredited  diplomatic  agent  carries  with  him,  in  addition  to 
his  letter  of  credence  or  his  full  poivers,  a  passport  which 
authorizes  him  to  travel,  and  describes  his  person  and  office. 
In  time  of  peace  it  is  a  sufficient  protection  to  him  on  his 
journey  to  the  court  to  which  he  is  sent;  but  in  time  of  war 
an  ambassador  sent  to  the  enemy's  government  requires  a 
passport  or  safe-conduct  from  it.  No  minister  starts  on  his 
mission  without  his  instructions.  These  are  directions  given 
to  a  diplomatic  agent  for  his  guidance  in  the  negotiations  he 
is  sent  to  conduct.  They  may  be  oral,  but  they  are  almost 
invariably  written.  He  is  not  to  communicate  them  to  the 
government  to  which  he  is  accredited,  or  to  his  fellow  pleni- 
potentiaries at  a  conference,  unless  specially  authorized  to 
1  Despagnet,  Droit  International  Public,  pp.  228,  229. 


308  BIGHTS   AND   OBLIGATIONS 

do  so.  If  points  arise  on  which  he  is  without  instructions, 
or  on  which  he  deems  it  expedient  to  deviate  from  his  in- 
structions, he  must  refer  to  his  government  for  directions. 
This  is  called  accepting  a  proposal  ad  referendum;  and  it 
is  frequently  resorted  to  now  that  the  telegraph  and  steam 
have  made  communication  between  a  government  and  its 
agents  at  a  distance  rapid  and  easy.1 

When  a  diplomatic  minister  reaches  the  capital  of  the 
country  to  which  he  is  accredited,  he  notifies  his  arrival  to 
the  minister  for  foreign  affairs,  and  demands  an  audience  of 
the  sovereign  for  the  purpose  of  delivering  his  letters  of 
credence.  Ambassadors  are  entitled  to  a  public  audience, 
whereas  ministers  of  the  second  and  third  classes  have  only 
a  right  to  a  private  audience,  and  charges  d'affaires  are 
obliged  to  be  content  with  an  audience  of  the  foreign  min- 
ister. The  public  audience  is  more  ceremonious  than  the 
private  audience,  but  at  both  the  letters  of  credence  are 
delivered  to  the  sovereign,  and  formal  speeches  of  good  will 
and  welcome  are  made  to  one  another  by  the  two  parties 
to  the  interview.2  When  the  diplomatic  agent  has  gone 
through  this  ceremony  all  the  rights  and  immunities  of  pub- 
lic ministers  attach  to  him  and  continue  till  the  end  of  his 
mission.  Previously  they  are  his  rather  by  courtesy  than  of 
right,  with  the  exception  of  personal  inviolability,  which  he 
possesses  from  the  moment  he  sets  out  to  fulfil  his  mission. 
On  the  departure  of  a  minister  he  has  a  similar  formal  au- 
dience to  present  his  letters  of  recall.  It  was  once  a  custom 
to  give  presents  to  departing  diplomatists  ;  and  during  the 
seventeenth  century  a  good  deal  of  energy  seems  to  have 
been  spent  in  quarrels  about  them  ;  for  if  the  representative 
of  one  sovereign  imagined  that  what  he  had  received  was  of 
less  value  than  what  had  been  given  to  the  representative  of 
another  sovereign,  he  deemed  his  master  insulted  and  made 

1  Twiss,  Law  of  Nations,  vol.  I,  §§  212-214;  C.  de  Martens,  Guide  Diplo- 
matique, ch.  IV. 

2  Twiss,  Law  of  Araf ions,  vol.  I,  §  215. 


COKNECTED   WITH   DIPLOMACY  309 

the  court  ring  with  his  complaints.  Some  powers,  the 
United  States  being  one  of  them,  have  forbidden  their  dip- 
lomatic agents  to  receive  these  formal  and  official  parting 
gifts,  and  they  have  now  fallen  into  disuse. 

There  are  numerous  ways  in  which  a  diplomatic  mission 
can  be  terminated.  It  comes  to  an  end  by  the  outbreak  of 
war  between  the  state  that  sends  the  minister  and  the  state 
to  which  he  is  sent,  or  by  his  death  or  recall,  or  by  the 
expiration  of  the  time  fixed  for  the  duration  of  the  mission, 
or  by  the  success  or  failure  of  its  special  purpose,  or  by  the 
return  of  the  regular  minister  to  his  post  in  cases  where  a 
minister  has  been  accredited  ad  interim.  The  death  of  the 
sovereign  to  whom  the  diplomatic  agent  is  accredited,  or  the 
death  of  his  own  sovereign,  terminates  the  mission  in  the 
case  of  monarchical  states  ;  but  the  election  of  a  new  chief 
magistrate  of  a  republic  makes  no  difference  in  this  respect. 
If  a  minister  is  sent  away  in  consequence  of  having  given 
grave  offence,  or  if  he  goes  away  in  consequence  of  having 
received  grave  offence,  whether  offered  to  himself  personally 
or  to  the  state  that  he  represents,  his  mission  is  in  both 
cases  brought  to  an  end.  Moreover,  it  is  technically  ter- 
minated by  a  change  in  his  diplomatic  rank  ;  but  in  such  a 
case  he  presents  at  the  same  time  his  letters  of  recall  in  his 
old  capacity  and  his  letters  of  credence  in  his  new  capacity, 
and  thus  commences  a  new  official  life  at  the  moment  of  the 
dissolution  of  his  former  one.  Strictly  speaking,  the  death 
of  a  diplomatic  minister  terminates  all  the  immunities  en- 
joyed by  those  dependent  on  him  ;  but  kindness  and  cour- 
tesy demand  that  they  be  continued  for  a  limited  time  to  his 
widow  and  children,  in  order  to  give  them  the  means  of 
winding  up  his  affairs  and  removing  from  the  country.1 

XC.  de  Martens,  Guide  Diplomatique,  ch.  IX  ;  Oppenbeim,  International 
Law,  vol.  I,  pp.  466-462. 


310  RIGHTS   AND   OBLIGATIONS 

§128 

We  have  already  indicated  that  diplomatic  ministers  resi- 
dent at  foreign  courts  possess  many  immunities.     Speaking 
generally,  we  may  say  that  they  and  their  suites 

I  idiomatic  immu-     o  J'  J        J  J 

nities- their         are  exempt  from  the  local  jurisdiction.    A  good 

general  nature  and  t  . '    • 

the  reason  for  their  deal  of  doubt  exists  as  to  the  exact  limits  of 
their  exemption ;  but  the  reason  for  its  ex- 
istence is  clear.  An  ambassador  could  not  attend  to  the 
interests  of  his  country  with  perfect  freedom  and  absolute 
fearlessness,  if  he  were  liable  to  be  dealt  with  by  the  local 
law  and  subjected  to  the  authority  of  the  officers  of  the 
state  to  which  he  was  sent.  In  considering  the  nature  and 
extent  of  diplomatic  privileges  it  will  be  convenient  to  divide 
them  into  Immunities  connected  with  the  person,  and  Immuni- 
ties connected  with  property,  and  to  consider  each  class  sepa- 
rately, though  the  line  of  demarcation  between  them  is  not 
always  easy  to  draw. 

§129 

Immunities  connected  with  the  person  are  granted  in  the 
fullest  degree  to  public  ministers  and  those  of  their  suite 
immunities  con-  who  possess  the  diplomatic  character  and  there- 
p^fnoTtheX-  fore  hold  a  privileged  position  in  their  own 
lomatic  agent.  right,  and  in  a  lesser  measure  to  the  minister's 
wife,  children,  private  secretary,  chaplain  and  servants,  who 
are  necessary  for  his  comfort  and  convenience,  but  do  not 
belong  to  the  diplomatic  service  of  his  country.  With 
regard  to  all  matters  settled  by  the  lex  domicilii,  the  legal 
position  of  diplomatic  agents  resident  abroad  is  that  of  per- 
sons resident  in  their  own  country.  As  to  their  private 
rights  and  obligations,  they  are  subject  to  the  law  of  the 
state  that  sends  them ;  and  all  children  born  to  them 
abroad  are  held  to  be  subjects  of  their  own  country.  They 
cannot  be  arrested  unless  they  are  actually  engaged  in  plot- 
ting against  the  security  of  the  state  to  which  they  are  ac- 
credited, and  even  in  such  an  extremity  application  for  their 


CONNECTED   WITH  DIPLOMACY  311 

recall  should  first  be  made  unless  the  matter  is  too  urgent 
for  delay.  This  view  of  the  law  is  upheld  by  the  case  of 
Count  Gyllenborg,  which  occurred  in  1717.  He  was  Swedish 
ambassador  to  England,  and  while  acting  in  that  capacity 
had  made  himself  one  of  the  prime  agents  in  a  conspiracy 
to  overthrow  George  I  and  set  the  old  Pretender  on  the 
English  throne.  The  courts  of  Sweden  and  Spain  were 
concerned  in  the  plot  along  with  the  English  Jacobites,  and 
one  of  its  leading  features  was  the  invasion  of  Scotland  by 
12,000  Swedish  troops.  The  British  Government  obtained 
a  clue  to  the  conspiracy  by  intercepting  some  letters.  They 
therefore  arrested  Gyllenborg  and  seized  his  diplomatic  doc- 
uments, in  which  they  found  full  proof  of  all  they  had  sus- 
pected. In  consequence  they  detained  the  Count  as  a  prisoner, 
till  he  was  exchanged  for  the  English  ambassador  to  Swe- 
den, who  had  been  arrested  in  retaliation.  The  ministers 
of  foreign  powers  in  London  protested  against  Gy)lenborg's 
arrest  as  a  breach  of  International  Law  ;  but  when  the  rea- 
sons for  it  were  explained  to  them,  all  except  the  Spanish 
ambassador  professed  themselves  satisfied  ;  and,  as  Spain  was 
one  of  the  parties  to  the  plot,  its  protests  were  of  little 
value.1  There  can  be  no  doubt  that  the  British  Government 
was  right  in  the  main  and  at  the  time,  though  in  these  days 
a  minister  in  Gyllenborg's  position  would  merely  be  escorted 
out  of  the  country.  His  arrest  would  be  regarded  as  going 
a  little  beyond  the  absolute  necessities  of  self-defence,  which 
alone  can  justify  the  exercise  of  personal  restraint  even  in 
the  milder  form.  In  the  very  next  year  the  French  Regent 
ordered  the  arrest  of  the  Prince  of  Cellarmare,  the  Spanish 
ambassador  at  Paris,  who  had  been  engaged  in  a  conspiracy 
to  seize  the  Duke  of  Orleans  and  proclaim  the  King  of 
Spain  regent  of  France  in  his  stead,  with  the  Duke  of 
Maine  as  deputy.2  On  this  occasion  no  protests  were 

1  Ward,  History  of  the  Law  of  Nations,  vol.  II,  pp.  548-550  ;  C.  de  Martens, 
Causes  Celebrcs,  vol.  I,  pp.  75-138. 

2  C.  de  Martens,  Causes  Celebres,  vol.  I,  pp.  139-173. 


312  BIGHTS   AND   OBLIGATIONS 

made  by  third  powers  ;  and  the  two  cases  together  may 
be  held  to  have  conclusively  established  the  doctrine  that 
a  foreign  minister's  inviolability  does  not  extend  to  cover 
acts  done  against  the  safety  of  the  government  to  which 
he  is  accredited.  It  must,  however,  be  remembered  that  he 
may  not  be  tried  and  punished  by  the  offended  state.  It 
has  no  jurisdiction  over  him ;  and  its  right  to  deal  forcibly 
with  him  at  all  is  based  upon  and  limited  by  considerations 
of  safety. 

Visitors  and  hangers-on  of  the  embassy  do  not  possess 
the  privilege  of  personal  inviolability,  but  come  under  the 
jurisdiction  of  the  state  in  whose  territory  they  are.  This 
was  settled  by  a  case  that  arose  in  1653.  In  that  year 
Don  Pantaleon  Sa,  the  brother  of  the  Portuguese  ambassador 
in  England,  committed  murder  under  circumstances  of  pecu- 
liar atrocity.  He  got  into  a  quarrel  at  the  London  Exchange 
with  Colonel  Gerhard,  and  set  upon  him  with  a  band  of 
attendants.  The  Colonel  was,  however,  rescued;  but  the 
next  night  Sa  came  to  the  Exchange  with  fifty  armed  Por- 
tuguese, and  commenced  a  general  attack  on  all  who  were 
there,  one  man  being  killed  and  several  wounded  before  the 
horse  guards  came  and  put  down  the  riot.  The  ambassador 
gave  up  the  delinquents,  but  Don  Pantaleon  declared  that 
he  was  clothed  with  the  diplomatic  character,  and  claimed 
to  be  under  no  jurisdiction  but  that  of  the  king  of  Portu- 
gal. It  was,  however,  shown  that  he  was  not  an  ambas- 
sador at  the  time,  but  had  only  received  from  his  sovereign 
a  promise  that  he  should  be  accredited  as  ambassador  on 
the  recall  of  his  brother,  which  was  momentarily  expected. 
His  brother,  the  real  ambassador,  interceded  for  him  ;  but 
Cromwell  allowed  the  law  to  take  its  course,  and  he  was 
tried,  convicted  and  hanged.1  His  real  position  seems  to  have 
been  somewhat  doubtful.  He  certainly  was  not  the  head 
of  the  Portuguese  legation,  and  therefore  Hale  is  mistaken 
in  supposing  that  his  case  supports  the  contention  that  an 
1  Ward,  Histo)~y  of  the  Law  of  Nations,  vol.  II,  pp.  635-646. 


CONNECTED   WITH    DIPLOMACY  313 

ambassador  may  be  tried  for  murder.1  -If  he  is  to  be  re- 
garded as  a  member  of  his  brother's  suite,  all  we  can  say 
is  that  International  Law  has  developed  since  his  time  and 
would  not  now  permit  a  trial  and  execution  under  similar 
circumstances  by  the  authorities  of  the  state  where  the  crime 
was  committed.  But  if  he  was  simply  a  visitor  at  the  em- 
bassy, he  would  not  be  protected  by  diplomatic  immunity 
to-day  any  more  than  he  was  more  than  two  hundred  and 
fifty  years  ago. 

A  public  minister  is  free  from  legal  process  as  well  as  from 
personal  restraint.  He  cannot  be  compelled  to  appear  in 
court  and  plead ;  but  if  he  chooses  to  waive  his  privilege, 
the  courts  will  deal  with  him  either  as  plaintiff  or  defend- 
ant. Having  submitted  himself  to  their  jurisdiction,  he  is 
bound  to  go  through  all  that  is  needful  to  the  due  conduct 
of  the  case.  He  cannot,  for  instance,  refuse  to  answer  awk- 
ward questions  in  cross-examination  on  the  plea,  of  diplo- 
matic immunity.  The  question  whether  he  may  waive  his 
privileges  himself,  or  whether  his  government  is  alone  com- 
petent to  do  so,  is  one  to  be  decided,  not  by  International  Law, 
but  by  the  law  of  each  separate  state  for  its  own  diplomatic 
agents.  If  the  evidence  of  the  minister  of  a  foreign  power 
is  required  in  an  important  case,  he  must  be  requested  to 
appear  and  give  it ;  but  he  cannot  be  compelled  to  do  so. 
Rather  than  defeat  the  ends  of  justice,  ambassadors  will 
generally  consent  to  waive  their  immunity  and  give  the 
required  testimony.  But  in  1856  the  Dutch  minister  at 
Washington,  who  was  an  essential  witness  in  a  case  of 
murder,  refused  to  appear  in  open  court,  though  he  was 
willing  to  make  a  deposition  on  oath.  His  government 
declined  to  order  him  to  give  evidence  publicly,  and  the 
United  States  demanded  his  recall  in  consequence  ;  but 
they  could  not  force  him  to  appear  and  testify.2  At  the 
trial  of  Guiteau  for  the  assassination  of  President  Garfield, 

1  Hale,  Pleas  of  the  Crown,  vol.  I,  p.  99. 

a  Wheaton,  International  Law  (Lawrence's  ed.),  pp.  393,  394. 


314  RIGHTS   AND   OBLIGATIONS 

the  minister  of  Venezuela  appeared  as  a  witness  and  gave 
his  testimony  in  open  court.1 

When  permanent  legations  were  first  established  by  states 
at  one  another's  courts,  many  extreme  pretensions  were  put 
forward  by  ambassadors,  and  among  them  was  the  claim  to 
exercise  civil  and  criminal  jurisdiction  over  the  members  of 
their  suites  according  to  the  laws  of  their  own  country. 
But  in  modern  practice  no  such  right  is  conceded,  and  it 
would  not  now  be  demanded.  In  civil  matters  the  utmost 
a  diplomatic  minister  can  do  is  to  authenticate  testaments 
and  contracts  made  before  him  by  members  of  his  suite ;  and 
his  chaplain  may  solemnize  marriages  between  subjects  of 
the  state  that  has  accredited  him  in  the  chapel  of  the 
embassy,  if  the  laws  of  their  country  allow  it ;  but  there  is 
great  doubt  and  great  diversity  of  practice  with  regard  to 
the  marriage  of  foreigners,  or  marriages  between  a  subject 
of  the  ambassador's  state  and  a  foreigner.2  In  criminal 
matters  that  arise  between  members  of  the  suite,  the  head 
of  the  legation  takes  and  prepares  the  evidence,  but  sends 
the  accused  home  for  trial ;  and  he  possesses  a  similar  power 
as  to  the  servants  of  the  embassy,  though  its  limits  are  un- 
certain and  disputable. 

There  has  been,  and  still  is,  some  difference  of  opinion 
among  jurists  as  to  whether  a  diplomatic  agent,  travelling 
to  his  destination  through  the  territories  of  third  powers  at 
peace  with  his  sovereign,  is  entitled  within  them  to  full  per- 
sonal inviolability,  or  whether  he  can  expect  only  the  protec- 
tion given  to  an  ordinary  traveller.  Probably  as  a  matter 
of  strict  right  the  latter  is  all  that  can  be  demanded ;  but 
the  comity  of  nations  would  dictate  the  recognition  of  the 
ambassadorial  character,  and  the  protection  of  the  foreigner 
clothed  with  it  from  all  molestation  on  his  passage  through 
the  territory  to  his  proper  destination,  though  it  may  well 
be  doubted  whether  immunity  should  be  granted  to  him  if 

1  Wharton,  International  Law  of  the  United  States,  §  98. 

2  Hall,  International  Zaw,  pp.  185,  186,  and  note. 


CONNECTED   WITH   DIPLOMACY  315 

he  made  a  stay  of  considerable  length  in  the  country.  A 
belligerent  can,  of  course,  capture  his  enemy's  ambassadors 
in  any  place  where  it  is  lawful  for  him  to  carry  on  hostili- 
ties, unless  he  has  himself  provided  them  with  a  safe-con- 
duct. It  seems  to  be  settled  that  commissioners  appointed 
in  accordance  with  treaty  stipulations  for  special  purposes, 
such  as  the  marking  out  of  a  frontier  or  the  superin- 
tendence of  a  military  evacuation,  have  no  right  to  diplo- 
matic immunities.  A  British  commissioner  appointed  under 
the  treaty  of  1794  was  tried  for  an  offence  against  the  local 
law  by  an  American  court  at  Philadelphia,  and  the  English 
Government  made  no  complaint.1 

The  immunities  of  the  members  of  a  diplomatic  minister's 
family  and  household  are  granted  to  them  because  his  com- 
fort and  dignity  could  not  be  properly  provided  for  unless 
they  were  free  to  a  great  extent  from  the  local  jurisdiction. 
His  wife  not  only  shares  his  personal  inviolability,  but  is 
also  a  partaker  of  the  ceremonial  honors  paid  to  him.  His 
children  occupy  a  similar  position ;  and  his  chaplain  and 
private  secretary  are  certainly  free  from  arrest,  as  also  are 
the  messengers  and  couriers  attached  to  the  embassy.  It  is 
generally  held  that  the  regular  servants  of  the  minister,  as 
distinct  from  such  persons  as  workmen  temporarily  employed 
about  the  premises,  or  individuals  who  give  up  but  a  small 
portion  of  their  time  to  their  duties  in  connection  with  the 
embassy,  are  exempt  from  the  local  jurisdiction.  But  there 
is  no  uniform  practice  as  to  the  extent  of  their  immunities, 
nor  is  there  any  agreement  among  the  general  body  of  civil- 
ized states  as  to  what  their  privileges  ought  to  be.2  The  law 
of  England  on  the  subject,  as  embodied  in  a  statute3  that  is 
always  held  by  British  judges  to  be  declaratory  of  the  law  of 
nations,  declares  void  all  writs  and  processes  issued  against 

1  Wharton,  International  Law  of  the  United  States,  §  93  a. 
2 For  the  ideas  of  jurists  as  to  diplomatic  immunities,  see  Annuaire  de 
Vlnstitut  de  Droit  International,  vol.  14,  pp.  240-244. 
8  7  Anne,  c.  12. 


316  EIGHTS   AND   OBLIGATIONS 

them,  unless  they  are  traders.  But  in  criminal  matters  the 
British  authorities  claim  a  right  to  exercise  jurisdiction  over 
the  servants  of  the  embassy,  if  the  offence  is  committed  out- 
side the  minister's  residence.  In  most  countries  they  would 
not  be  arrested  without  the  special  permission  of  the  ambas- 
sador ;  and  in  modern  times  difficulties  are  generally  pre- 
vented by  the  exercise  of  tact  and  judgment.  If  the  servant 
of  a  public  minister  commits  a  criminal  offence,  his  master 
either  dismisses  him  from  his  service,  and  thus  puts  an  end 
at  once  to  all  claim  for  immunity,  or  hands  him  over  to  the 
local  authorities  to  be  dealt  with  according  to  their  law. 
Only  when  the  offence  is  serious,  and  is  committed  within 
the  residence  of  the  minister,  does  he,  as  a  rule,  arrest  the 
perpetrator  and  send  him  home  for  trial.  In  civil  cases  he 
grants  permission  for  his  servants  to  be  proceeded  against  in 
the  local  courts.  In  order  to  avoid  misunderstandings  and 
controversies  as  to  the  persons  entitled  to  immunity,  most 
states  require  the  heads  of  the  foreign  legations  to  send  peri- 
odically to  the  secretary  for  foreign  affairs  a  list  of  the  mem- 
bers of  their  suites  and  the  servants  in  their  employ. 

§  130 

Immunities  connected  with  property  apply  first  and  fore- 
most to  the  official  residence  of  the  ambassador,  usually 
immunities  con-  called  his  hotel.  It  is  generally  regarded  as 
property  of  the*  inviolable  except  in  cases  of  great  extremity. 
diplomatic  agent.  The  fiction  of  ex-territoriality  is  sometimes 
applied  to  it,  and  it  is  held  to  be  a  portion  of  the  state  to 
which  its  occupant  belongs.  But  the  theory  is  a  clumsy  at- 
tempt to  account  for  what  is  better  explained  without  it. 
If  it  were  true,  the  hotel  could  in  no  case  be  entered  by  the 
local  authorities;  whereas  it  is  universally  admitted  that  the 
extreme  circumstances  which  justify  the  arrest  of  a  diplo- 
matic minister  of  a  foreign  power  and  the  seizure  of  his  papers, 
justify  also  forcible  entry  into  his  hotel  and  its  search  by  the 


CONNECTED   WITH   DIPLOMACY  317 

officers  of  the  state  to  which  he  is  sent.  But  the  attack.by 
Chinese  troops  and  Boxers  on  the  foreign  embassies  at  Pekin 
in  June  and  July,  1900,  with  the  connivance  of  the  Chinese 
Government  if  not  under  its  direct  orders,  was  an  outrage  for 
which  no  shadow  of  justification  can  be  pleaded.  It  was 
justly  followed  by  stern  retribution,  and  the  exaction  of  pe- 
cuniary indemnities.  It  must,  however,  be  admitted  that  the 
excesses  of  some  of  the  troops  sent  out  by  the  great  civilized 
powers  to  be  the  instruments  of  avenging  justice  were  as 
reprehensible  as  the  original  offence. 

It  is  now  settled  that  in  European  countries  ambassadors 
do  not  possess  a  right  of  giving  asylum  in  their  residences 
to  criminals  and  refugees,  though  in  the  eighteenth  century 
they  were  disposed  to  claim  it.  There  appears,  however, 
to  be  a  binding  custom  in  favor  of  harboring  political 
refugees  in  the  South  and  Central  American  states,  and 
in  Oriental  countries.  The  frequent  revolutions  in  the 
former  group  of  states,  and  the  barbarous  treatment  of  polit- 
ical offenders  in  the  latter,  are  held  to  justify  a  departure 
from  the  ordinary  rule.  The  reception  of  Balmacedist 
refugees  by  Mr.  Egan,  the  United  States  minister,  in  the 
course  of  the  Chilian  revolution  of  1891,  is  a  case  in  point, 
though  there  can  be  little  doubt  that  he  attempted  to  ex- 
tend the  right  of  asylum  further  than  established  usage 
warranted  when  he  demanded  safe-conducts  for  political 
refugees  sheltered  in  his  abode.1 

Some  states  do  not  recognize  the  immunities  of  the 
ambassador's  residence  as  existing  to  the  extent  usually 
claimed.  France  holds  that  the  privileges  of  the  hotel  do 
not  extend  to  acts  done  within  it  affecting  the  inhabitants 
of  the  country  in  which  it  is  situated.2  Great  Britain 
claims  the  right  of  arresting  servants  of  the  embassy  within 
the  precincts  of  the  hotel.  This  was  clearly  shown  by  a 
case  that  occurred  in  1827,  when  the  coachman  of  Mr. 

1  Moore,  International  Law  Digest,  vol.  II,  pp.  791-800. 
3  Hall,  International  Law,  5th  ed.,  p.  181. 


318  EIGHTS   AND   OBLIGATIONS 

Gallatin,  the  American  minister  in  London,  was  arrested  in 
Ids  stable  by  the  local  authorities  on  a  charge  of  assault  com- 
mitted outside  the  embassy.  The  attention  of  the  British 
Foreign  Office  was  called  informally  to  the  subject;  and  in 
reply  it  was  asserted  that  the  law  did  not  extend  "  to  pro- 
tect mere  servants  of  ambassadors  from  arrest  upon  criminal 
charges,"  and  that  the  premises  occupied  by  a  diplomatic 
minister  were  not  entitled  to  inviolability.  The  magistrates 
who  issued  the  warrant  were,  however,  told  that  they  ought 
to  have  informed  the  minister  of  what  they  had  done,  in  order 
that  his  convenience  might  have  been  consulted  as  to  the  time 
and  manner  of  making  the  arrest.1  The  attitude  of  France 
and  Great  Britain  in  this  matter  is  rather  an  exception  to 
the  general  practice  of  states  than  an  example  of  the  en- 
forcement of  an  ordinary  rule.  But  it  must  be  admitted 
that  the  exact  limits  of  the  inviolability  of  the  hotel  are 
ill-defined.  The  ambassador  is  free  from  the  payment  of 
taxes  levied  upon  it,  whether  for  purposes  of  state  or  for  the 
maintenance  of  municipal  government;  but  if  the  charge 
for  such  commodities  as  light  and  water  takes  the  form  of 
local  taxation,  he  would  be  expected  to  meet  the  demands 
for  them,  just  as  he  is  expected  to  pay  the  bills  for  the  pro- 
visions consumed  by  his  household,  though  he  cannot  be 
compelled  to  do  so,  since  his  person  is  inviolate  and  his 
house  and  goods  are  exempt  from  legal  process.  The  other 
official  property  of  the  embassy  shares  the  immunities  of 
the  hotel.  It  may  not  be  seized,  distrained  upon,  or  dealt 
with  in  any  way,  except  in  extreme  cases  of  state  necessity. 
Among  the  privileges  covered  by  the  principle  of  the 
general  inviolability  of  the  official  residence  of  the  legation, 
one  of  the  most  important  is  the  celebration  of  divine  wor- 
ship within  it  in  the  form  desired  by  the  ambassador,  even 
though  it  is  proscribed  by  the  country  in  which  he  resides. 
But  he  may  not  give  public  notification  of  the  services  by 
ringing  a  bell  or  in  any  other  way,  nor  may  he  allow  sub- 
1  Moore,  International  Law  Digest,  vol.  IV,  pp.  666,  657. 


CONNECTED    WITH   DIPLOMACY  319 

jects  of  the  country  to  which  he  is  accredited  to  be  present, 
if  attendance  at  such  worship  is  forbidden  by  their  law. 

Some  writers J  hold  that  diplomatic  ministers  are  liable  to 
suits  in  the  local  tribunals,  and  other  processes  under  the 
law  of  the  country  to  which  they  are  accredited,  in  all  cases 
in  which  their  private  property  in  that  country  is  con- 
cerned. Their  transactions  as  traders,  executors,  trustees, 
or  indeed  in  any  capacity  but  their  official  one,  are  held  to 
render  them  amenable  to  the  local  jurisdiction  as  far  as 
those  transactions  are  concerned.  It  is,  of  course,  admitted 
that  the  person  of  a  diplomatic  agent  is  inviolable ;  and 
therefore  the  doctrine  amounts  to  no  more  than  an  assertion 
that  he  must  submit  to  proceedings  directed  against  the 
property,  in  such  cases  as  we  have  described.  It  may  be 
doubted,  however,  how  far  this  view  is  consistent  with 
sound  principle  or  borne  out  by  practice.  The  law  of  the 
United  States  prohibits  the  service  of  writs  upon  the  resi- 
dent ministers  of  foreign  states,  and  considers  those  who 
sue  out  or  enforce  processes  against  them  as  guilty  of  an 
indictable  offence,  even  though  ignorant  of  their  diplo- 
matic character.2  In  England  not  only  are  the  persons  of 
diplomatic  ministers  inviolable,  but  all  writs  and  processes 
whereby  "  their  goods  and  chattels  may  be  distrained,  seized 
or  attacked "  are  "  utterly  null  and  void,"  and  all  con- 
cerned in  obtaining  such  writs  or  processes  are  subject  to 
severe  punishment.3  The  law  of  other  leading  countries 
contains  similar  provisions;  and  though  cases  can  be  found 
in  favor  of  drawing  a  distinction  between  the  private  and 
the  official  property  of  a  public  minister,  they  are  not  of 
recent  date.  In  1720  the  envoy  of  the  Duke  of  Holstein 
in  Holland  had  all  his  goods,  except  such  as  were  official  in 
their  nature,  seized  for  debts  contracted  by  him  in  the 

1  For  example,    Woolsey,  International  Law,   §§  92,  96  ;  Calvo,  Droit 
International,  §  592  ;  Oppeuheim,  International  Law,  vol.  I,  p.  446. 

2  Wharton,  International  Law  of  the  United  States,  §  93. 
8  7  Anne,  c.  12. 


320  RIGHTS   AND   OBLIGATIONS 

course  of  trade;  but  his  treatment  can  hardly  be  quoted  as 
a  precedent  to-day.1  Dana  forcibly  points  out2  the  incon- 
venience to  a  minister  of  being  obliged  to  appear  and  liti- 
gate, lest  judgment  should  go  against  him  by  default.  The 
extension  of  diplomatic  immunities  to  all  property  possessed 
by  the  agents  of  foreign  countries  does  not  leave  those  who 
might  suffer  in  consequence  of  it  absolutely  helpless.  Most 
states  now  forbid  their  representatives  abroad  to  engage  in 
trade,  and  as  to  other  matters,  the  remedy  by  diplomatic 
complaint,  or  an  appeal  to  the  courts  of  the  ambassador's 
own  country,  will  generally  be  sufficient. 

Goods  sent  from  abroad  for  the  use  of  an  embassy  are 
generally  admitted  duty  free.  But  the  privilege  is  granted 
rather  as  a  matter  of  comity  than  of  right.  Precautions  may 
be  taken  against  the  abuse  of  it,  and  on  proof  that  it  has 
been  used  to  cover  a  contraband  trade  it  may  be  withdrawn. 

§131 

In  addition  to  their  purely  diplomatic  agents,  civilized 
states  maintain  in  the  territory  of  their  neighbors  commer- 
consuis—  their  c^  agen^s  called  consuls.  Most  powers  have 


position  and          created  various  ranks  in  their  consular  service, 

immunities. 

from  Consuls  General  down  to  Consular  Agents, 
and  many  of  them  avail  themselves,  for  the  less  important 
posts,  of  the  services  of  merchants  resident  in  the  district  in 
which  they  are  to  fulfil  the  duties  of  their  office.  It  is  ad- 
mitted that  consuls  may  be  natives  of  the  country  that 
uses  their  services,  or  natives  of  the  country  in  which  they 
fulfil  their  duties,  or  natives  of  other  countries  domiciled  in 
the  country  where  they  act.  But  the  regular  consular 
service  of  a  state  is  almost  invariably  confined  to  its  own 
subjects;  and  the  members  of  such  service,  being  specially 
trained  and  paid  for  their  work  and  wholly  devoted  to  it, 

1  Bynkershoek,  De  Foro  Legatorum,  ch.  XVI. 
8  Note  to  Wheaton's  International  Law,  p.  307. 


CONNECTED   WITH   DIPLOMACY  321 

receive  more  consideration  than  their  non-professional  col- 
leagues, and  in  many  states  have  higher  privileges  accorded 
to  them. 

The  duties  of  consuls  are  numerous  and  varied.  Not  only 
do  they  look  after  the  interests  of  merchantmen  of  the  state 
whose  agents  they  are,  supervise  the  papers  of  such  vessels, 
assist  the  masters  to  comply  with  local  regulations,  settle  dis- 
putes between  captains  and  crews,  and  succor  seamen  in  dis- 
tress, but  they  also  advise  subjects  of  the  power  the}7"  serve  as 
to  the  proper  execution  of  all  legal  documents,  and  see  on  the 
one  hand  that  in  matters  of  business  the  local  laws  are  observed, 
and  on  the  other,  that  their  clients  receive  no  injustice  from 
the  local  authorities.  They  give  aid  to  those  who  are  pres- 
ent in  such  matters  as  marriages,  devolution  of  property, 
testaments,  and  the  proper  registration  of  passports,  and  to 
those  who  are  absent  in  such  matters  as  successions,  and  pro- 
tection to  property.  In  addition  they  send  to  their  govern- 
ment reports  on  the  commerce,  industry,  and  agriculture  of 
the  state  in  which  they  reside.  These  often  contain  very 
valuable  information,  which  is  of  the  greatest  assistance  to 
the  -merchants  and  manufacturers  of  the  state  for  which  they 
act.  Each  member  of  the  consular  service  has  his  district 
assigned  to  him.  It  may  be  a  considerable  area,  or  one  large 
city  or  busy  seaport.  Its  extent  is  matter  for  agreement  be- 
tween the  sending  and  the  receiving  state;  but  outside  it 
the  consul  has  no  authority  and  no  privileges.1 

Consuls  are  not  clothed  with  the  diplomatic  character,  nor 
do  they  possess  diplomatic  immunities,  except  in  the  special 
cases  that  will  be  considered  immediately.  They  are  ap- 
pointed by  the  sovereign  of  the  country  whose  agents  they 
are,  and  they  receive  from  the  foreign  office  of  the  state 
where  they  reside  a  document  called  an  exequatur,  which 
authorizes  them  to  act  as  consuls  in  that  state,  and  to  hold 
official  communication  with  the  functionaries  of  its  internal 
administration.  They  are  under  the  local  law  and  jurisdic- 

1  Stowell,  Le  Consul,  pp.  24-136. 


322  BIGHTS  AND   OBLIGATIONS 

tion,  and  their  private  residences  are  not  held  to  be  exempt 
from  the  authority  of  the  local  functionaries.  But  the 
custom  of  regarding  their  official  papers  and  archives  as 
exempt  from  seizure  is  so  general,  and  has  been  so  frequently 
stipulated  for  in  treaties,  that  inviolability  may  now  be  re- 
garded as  almost,  if  not  quite,  a  right.  Over  the  doors  of 
their  consulates,  or  official  buildings,  they  may  put  up  the 
arms  of  the  state  they  represent,  and  its  flag  may  be  hoisted 
over  the  buildings  themselves.  Treaties  very  often  give 
further  privileges  in  the  case  of  consuls  whose  sole  occupa- 
tion is  to  act  as  such,  in  that  they  belong  to  the  regular 
consular  service  of  a  foreign  state.  They  may  not  be  com- 
pelled to  serve  in  the  army  or  militia,  and  soldiers  may  not 
be  quartered  on  them.  They  pay  no  taxes  in  respect  of 
their  consulates,  but  possess  no  right  of  asylum,  and  must 
give  up  refugees  who  gain  admission.1 

In  many  Eastern  countries,  however,  consuls  are  placed  on 
a  very  different  footing  from  that  which  they  occupy  in 
Western  states.  By  treaty  stipulations  and  immemorial 
custom  they  exercise  jurisdiction,  as  we  saw  when  dealing 
with  the  subject,2  over  citizens  of  the  state  whose  agents  they 
are,  and  in  the  exercise  of  this  jurisdiction  judicial  functions 
necessarily  fall  on  them.  In  order  to  protect  them  in  carry- 
ing out  these  and  other  duties,  they  have  a  large  share  of  the 
diplomatic  immunities  denied  to  consuls  elsewhere.  In  times 
of  disturbance  or  popular  violence  their  consulates  are  used 
as  places  of  refuge  by  their  compatriots,  and  for  others 
whose  lives  are  in  danger,  and  when  the  flag  of  their  country 
is  hoisted  the  buildings  are  held  to  be  inviolable.3  They 
have  large  rights  of  affording  protection.  A  curious  question 
with  regard  to  the  extent  of  these  rights  occurred  lately  in  con- 
nection with  the  French  military  occupation  of  Casa  Blanca  in 

1  Stowell,  Le  Consul,  pp.  139-184 ;  Oppenheim,  International  Law,  vol.  I, 
pp.  462-481.  2  See  §109. 

8  Hall,  Foreign  Jurisdiction  of  the  British  Crown,  pp.  132-203 ;  Halleck, 
International  Laio  (Baker's  ed.),  vol.  I,  ch.  XI. 


CONNECTED   WITH   DIPLOMACY  323 

Morocco.  The  German  consul  and  his  staff  aided  some  de- 
serters from  the  French  army,  three  of  whom  were  German 
subjects,  in  an  unsuccessful  attempt  to  escape.  The  two 
countries  referred  the  matter  to  arbitration  under  the  Hague 
Convention,  and  in  1909  the  arbitrators  decided  that  in  the 
circumstances  the  rights  of  the  military  occupant  overrode 
the  consular  right  of  protection.  But  they  added  words 
to  the  effect  thai  the  use  of  force  to  prevent  the  embarka- 
tion of  the  deserters  and  take  them  out  of  the  custody 
of  the  consular  staff  was  an  act  for  which  an  expression  of 
regret  was  due.1  In  several  of  the  South  and  Central  Amer- 
ican republics  consuls  are  used  as  agents  for  political  purposes 
and  accredited  as  charges  d'affaires.  But  in  such  cases  the 
diplomatic  character  attaches  to  them  and  the  consular 
character  is  merged  in  it.  They  gain  the  immunities  of 
public  ministers  and  must  be  treated  as  such.  But  these 
cases  are  exceptional  and  anomalous.  The  general  rule  about 
consuls  is  that  they  are  commercial,  not  diplomatic,  agents. 

§132 

We  will  now  pass  on  to  consider  the  treaty-making  power 
and  its  methods  of  action,  in  so  far  as  they  are  dealt  with 
by  International  Law.  In  each  state  the  right 

,  .  .  .    .         The  treaty-making 

of  making  treaties  rests  with  those  authorities  power.  Ratmca- 
to  whom  it  is  confided   by   the   political   con- 
stitution.    As   long   as   there   is  some  power  in  a  country 
whose  word  can  bind  the  whole  body  politic,  other  states 
must  do  their  international  business  with   it,  and  have  no 
right  to  inquire  into  its  nature  and  the  circumstances  of  its 
creation.      But    other    important    matters  connected    with 
treaties  are  of  international  concern.     The  first  of  these  to 
be  discussed  is 

1  American  Journal  of  International  Law,  vol.  Ill,  pp.  698-701,  756-760. 


324  BIGHTS   AND   OBLIGATIONS 

The  nature  and  necessity  of  ratification. 

Ratification  is  a  formal  ceremony  whereby,  some  time  after 
a  treaty  has  been  signed,  solemn  confirmations  of  it  are 
exchanged  by  the  contracting  parties.  No  treaty  is  binding 
without  ratification,  unless  there  is  a  special  agreement  to 
the  contrary.  The  full  powers  given  to  plenipotentiaries 
must  be  understood  as  conferring  a  right  to  conclude  agree- 
ments subject  to  the  ultimate  decision  of  the  governments 
that  they  represent.  Sometimes,  however,  it  is  agreed  that 
certain  preliminary  engagements  in  a  treaty  shall  take 
effect  immediately,  without  waiting  for  the  exchange  of 
ratifications,  as  was  the  case  with  the  Treaty  of  London  of 
1840  for  the  settlement  of  the  Egyptian  question.  A  re- 
served protocol  annexed  to  it  stipulated  that  the  preliminary 
measures  mentioned  in  the  second  article  should  be  carried 
out  at  once.1  But  when  a  treaty  is  ratified,  its  legal  effects 
are  held  to  date  from  the  moment  of  signature,  unless,  as 
was  the  case  with  the  Treaty  of  Paris  of  1856,  it  is  agreed 
that  they  shall  come  into  force  from  the  moment  of  ratifica- 
tion.2 To  this  rule  treaties  of  cession  are  an  exception; 
for  it  is  undoubted  law  that  they  commence  to  operate  from 
the  time  of  the  actual  transfer  of  the  ceded  territory.3 

The  question  whether  a  state  is  bound  to  ratify  a  treaty 
signed  by  its  lawful  representatives  is  sometimes  argued  at 
great  length  by  text  writers.  But  a  reference  to  practice 
robs  it  of  its  difficulties.  When  the  ratifying  power  and 
the  treaty-making  power  are  placed  by  the  constitution  of 
a  state  in  different  hands,  there  cannot  be  the  slightest 
obligation,  moral  or  legal,  for  it  to  ratify.  Other  states 
know  that  the  approval  of  two  authorities  has  to  be 
gained  for  a  diplomatic  instrument  before  it  can  be  considered 
as  agreed  to,  and  they  take  their  measures  accordingly. 
The  Senate  of  the  United  States  has  frequently  refused  to 

1  Holland,  European  Concert  in  the  Eastern  Question,  pp.  90-97. 

2  Ibid.,  p.  244.  3  TwisS)  Law  of  Nations,  vol.  I,  §  251. 


CONNECTED   WITH   DIPLOMACY  325 

ratify  treaties  made  by  the  executive  power,  or  amended  them 
as  a  condition  of  ratification.  In  1897,  for  instance,  it  refused 
its  assent  to  a  treaty  witli  Great  Britain  for  the  submission  to 
arbitration  of  future  disputes  between  the  two  countries  ; 
and  in  1900  it  introduced  amendments  that  Great  Britain 
was  unable  to  accept  into  a  treaty  dealing  with  the  Panama 
Canal.  Fortunately  the  questions  that  arose  were  satisfac- 
torily settled  by  the  Hay-Pauncefote  Treaty  of  the  following 
year.  But  when  the  treaty-making  power  and  the  ratifying 
power  are  vested  in  the  same  hands,  it  is  held  that  some 
reason  should  be  forthcoming  to  justify  a  refusal  to  ratify. 
If  the  negotiators  have  exceeded  their  powers,  if  any  deceit 
as  to  matters  of  fact  has  been  practised  upon  them,  or  if 
circumstances  have  entirely  changed  since  the  treaty  was 
signed,  there  can  be  no  doubt  that  a  state  is  quite  within  its 
rights  in  declining  to  give  the  last  formal  sanction  which 
calls  the  stipulations  of  its  agents  into  operation.  But 
modern  practice  seems  to  go  further,  and  give  support  to  the 
theory  that  the  time  between  signature  and  ratification  is 
granted  to  the  parties  for  the  purpose  of  thinking  the  matter 
over,  and  that  if  a  state  changes  its  mind  in  the  interval  for 
any  reason  that  is  at  all  distinguishable  from  mere  caprice, 
it  may  refuse  to  complete  the  bargain  by  ratification.  Thus 
the  King  of  Holland  refused  in  1841  to  ratify  a  commercial 
treaty  he  had  concluded  as  Grand  Duke  of  Luxemburg,  on 
the  ground  that  since  he  had  signed  it  he  had  become  con- 
vinced that  it  would  injure  the  trade  of  his  subjects,1  arid  in 
1884  Great  Britain  dropped  an  agreement  she  had  concluded 
iii  1883  with  Portugal  concerning  the  mouth  of  the  Congo, 
the  reasons  being  that  its  provisions  were  very  far  from  satis- 
fying the  traders  and  others  immediately  concerned,  and  that 
it  was  proposed  to  settle  the  question  along  with  many  other 
similar  questions  at  a  great  International  Conference.2 

1  Twiss,  Lav;  of  Nations,  vol.  I,  §  251. 

2  Speech  of  Mr.   Gladstone  in  House  of  Commons,  March  12,  1885 ;  see 
Hansard,  3d  Series,  vol.  CCXCV,  p.  975. 


326  BIGHTS   AND   OBLIGATIONS 

§133 

Next  among  the  matters  of  international  concern  connected 
with  formal  agreements  between  states  we  may  mention 

The  rules  of  interpretation  to  be  applied  to  treaties. 

A  vast  amount  of  misplaced  ingenuity  has  been  expended 
on  this  subject.  Vattel  devotes  a  whole  chapter  to  it,  and 
The  interpretation  obtains  as  the  result  such  rules  as,  "  It  is  not 
permitted  to  interpret  what  has  no  need  of  inter- 
pretation," and,  "We  ought  to  take  figurative  expressions 
in  a  figurative  sense."  *  But  since  states  have  no  common 
superior  to  adjust  their  differences  and  declare  with  author- 
ity the  real  meaning  and  force  of  their  international  docu- 
ments, it  is  clear  that  no  rules  of  interpretation  can  be  laid 
down  which  are  binding  in  the  sense  that  the  rules  followed 
by  a  court  of  law  in  construing  a  will  or  a  lease  are  binding 
on  the  parties  concerned.  "There  is  no  place  for  the  refine- 
ments of  the  courts  in  the  rough  jurisprudence  of  nations."2 
We  can  hardly  venture  to  go  beyond  the  statements  that 
ordinary  words  must  be  taken  in  an  ordinary  sense  and  tech- 
nical words  in  a  technical  sense,  and  that  doubtful  sentences 
and  expressions  should  be  interpreted  by  the  context,  so  as 
to  make  the  treaty  homogeneous  and  not  self-contradictory. 
When  states  get  into  controversy  about  the  interpretation  of 
a  treaty,  they  often  make  a  new  agreement,  clearing  up  the 
disputed  points  in  the  way  that  seems  most  convenient  at  the 
time,  which  is  not  always  the  way  pointed  out  by  strict  rules 
of  interpretation. 

§134 

The  last  point  we  have  to  consider  in  this  connection  is 
The  extent  to  which  treaties  are  binding. 

The  ancient  and  mediaeval  fashion  of  giving  pledges  and 
hostages  for  the  fulfilment  of  treaties  has  passed  away,  and 

1  Droit  des  Gens,  bk.  II,  ch.  xvii. 

2  Hall,  International  Law,  5th  ed.,  p.  341,  note. 


CONNECTED   WITH   DIPLOMACY  327 

states  now  rely  on  their  own  power,  and  on  considerations 
of  self-interest  and  feelings  of  duty,  to  secure  the  observ- 
ance of  engagements  entered  into  with  them.  The  obligation 
In  the  eye  of  International  Law  treaties  are  oftreaties- 
made  to  be  kept.  Their  obligation  is  perpetual,  unless  a 
time  is  limited  in  their  stipulations,  or  they  provide  for  the 
performance  of  acts  that  are  done  once  for  all,  such  as  the 
payment  of  an  indemnity  or  the  cession  of  territory.  That 
they  were  extorted  by  force  is  no  good  plea  for  declining  to 
be  bound  by  them.  Most  treaties  of  peace  are  made  by  the 
vanquished  state  under  duress;  but  there  would  be  an  end 
of  all  stability  in  international  affairs  if  it  were  free  to  re- 
pudiate its  engagements  on  that  account  whenever  it  thought 
fit.  The  only  kind  of  duress  which  justifies  a  breach  of 
treaty  is  the  coercion  of  a  sovereign  or  plenipotentiary  to 
such  an  extent  as  to  induce  him  to  enter  into  arrangements 
that  he  would  never  have  made  but  for  fear  on  account  of 
his  personal  safety.  Such  was  the  renunciation  of  the  Span- 
ish crown  extorted  by  Napoleon  at  Bayonne  in  1807  from 
Charles  IV  and  his  son  Ferdinand.1  The  people  of  Spain 
broke  no  faith  when  they  refused  to  be  bound  by  it  and 
rose  in  insurrection  against  Joseph  Bonaparte,  who  had  been 
placed  upon  the  throne. 

But  though  the  obligations  of  treaties,  with  the  exceptions 
just  mentioned,  are  perpetual  as  far  as  the  utterances  of 
International  Law  are  concerned,  it  is  clear  that  they  can- 
not remain  unchanged  forever.  No  one  now  proposes  to 
go  back  to  the  treaties  of  Miinster  or  of  Utrecht,  and  few 
would  consider  it  desirable  to  return  to  the  stipulations 
enacted  at  Vienna  after  the  downfall  of  the  first  Napoleon. 
As  circumstances  alter,  the  engagements  made  to  suit  them 
go  out  of  date.  When,  and  under  what  conditions,  it  is 
justifiable  to  disregard  a  treaty,  is  a  question  of  morality 
rather  than  of  law.  Each  case  must  be  judged  on  its  own 
merits.  It  is  impossible  to  lay  down  a  hard  and  fast  rule, 

1  Fyffe,  Modern  Europe,  vol.  I,  pp.  367-370. 


328  EIGHTS   AND   OBLIGATIONS 

such  as  was  embodied,  at  the  conference  held  at  London  in 
1871  to  settle  the  Black  Sea  question,  in  the  words,  "  It  is 
an  essential  principle  of  the  Law  of  Nations  that  no  power 
can  liberate  itself  from  the  engagements  of  a  treaty,  or 
modify  the  stipulations  thereof,  unless  with  the  consent  of 
the  contracting  powers  by  means  of  an  amicable  arrange- 
ment." l  This  doctrine  sounds  well;  but  a  little  considera- 
tion will  show  that  it  is  as  untenable  as  the  lax  view  that 
would  allow  any  party  to  a  treaty  to  violate  it  on  the  slight- 
est pretext.  If  it  were  invariably  followed,  a  single  ob- 
structive power  would  have  the  right  to  prevent  beneficial 
changes  that  all  the  other  states  concerned  were  willing  to 
adopt.  It  would  have  stopped  the  unification  of  Italy  in 
1860  on  account  of  the  protests  of  Austria,  and  the  consoli- 
dation of  Germany  in  1866  and  1871  because  of  the  opposi- 
tion of  some  of  her  minor  states.  International  Law  certainly 
does  not  give  a  right  of  veto  on  political  progress  to  any 
reactionary  member  of  the  family  of  nations  who  can  dis- 
cover in  its  archives  some  obsolete  treaty,  on  the  fulfilment 
of  whose  stipulations  it  insists  against  the  wishes  of  all  the 
other  signatory  powers.  In  truth  these  questions  transcend 
law.  They  are  outside  its  sphere;  and  its  rules  do  not  apply 
to  them.  Moreover  it  must  be  remembered  that  sometimes 
provisions  are  inserted  in  a  treaty  more  for  show  and  to  soothe 
wounded  susceptibilities,  than  with  any  serious  intention  of 
having  them  carried  into  effect.  Such  was  the  stipulation 
in  the  Treaty  of  Berlin  in  1878  that  Turkey  should  garrison 
the  Balkan  passes  with  her  troops,  which  should  have,  for  that 
purpose  only,  a  right  to  pass  through  Roumelia.2  It  was 
well  known  that  the  people  of  that  province  would  not  allow 
the  Ottoman  soldiers  to  pass  and  repass  peaceably,  and  the 
Porte  was  not  expected  to  exercise,  and  never  did  exercise, 
the  right  given  to  it  on  paper.  A  stipulation  of  the  great 
International  Treaty  of  Berlin  was  thus  ignored  from  the 

1  British  Parliamentary  Papers,  Protocols  of  London  Conference,  1871,  p.  7. 

2  Holland,  European  Concert  in  the  Eastern  Question,  p.  289. 


CONNECTED   WITH  DIPLOMACY  329 

beginning,  and  the  consent  of  the  contracting  parties  was 
never  even  asked;  yet  no  accusations  of  bad  faith  have  been 
bandied  about,  and  the  strictest  moralists  would  hardly  ven- 
ture to  say  that  the  provision  should  have  been  acted  upon 
at  the  risk  of  kindling  another  war.  Each  case  has  circum- 
stances that  are  peculiar  to  it,  and  we  must  judge  it  on  its 
own  merits,  bearing  in  mind  on  the  one  hand  that  good  faith 
is  a  duty  incumbent  on  states  as  well  as  individuals,  and  on 
the  other  that  no  age  can  be  so  wise  and  good  as  to  make  its 
treaties  the  rules  for  all  succeeding  time. 

The  question  of  the  obligation  of  treaties  was  raised  by 
Austria-Hungary,  in  October,  1908,  when  she  suddenly  noti- 
fied to  the  powers  the  extension  of  her  sovereignty  over  the 
provinces  of  Bosnia  and  Herzegovina,  which  the  Treaty  of 
Berlin  of  1878  had  handed  over  to  her  to  "  occupy  and  ad- 
minister."1 She  had  governed  them  for  thirty  years,  and 
in  all  material  matters  her  administration  had  been  very  suc- 
cessful, though  she  had  failed  to  conciliate  large  sections  of 
the  population.  Meanwhile,  inroad  after  inroad  had  been 
made  in  the  provisions  of  the  great  treaty.  Bulgaria  and 
Eastern  Roumelia  had  been  joined  in  spite  of  it ;  instead  of 
the  promised  reforms  in  Asiatic  Turkey  the  Armenians  had 
been  massacred,  in  some  districts  almost  out  of  existence ; 
and  numerous  small  stipulations,  such  as  those  concerned 
with  the  Balkan  passes,  the  Bulgarian  tribute,  and  the  forti- 
fications of  Batoum,  had  been  ignored  or  evaded  with  im- 
punity. Sudden  and  successful  revolution  had  just  turned 
Turkey  into  a  constitutional  state  ;  and  it  was  evident  that 
the  order  of  things  to  which  the  Treaty  of  Berlin  applied 
could  last  but  little  longer.  There  was  a  strong  case  for 
adding  Bosnia  and  Herzegovina  to  the  Austrian  dominions  in 
name  as  well  as  in  fact,  if  reasonable  compensation  were  given 
to  Turkey  for  the  loss  of  her  state-paper  sovereignty.  But 
the  methods  employed  were  most  unfortunate.  Austria- 
Hungary,  which  had  been  a  party  to  the  over-strong  declara- 
1  Holland,  European  Concert  in  the  Eastern  Question,  p.  292. 


330  RIGHTS   AND   OBLIGATIONS 

tion  of  1871,  quoted  above,  ignored  it  entirely,  and  proceeded 
to  act  on  her  own  mere  motion,  thus  putting  herself  before 
the  world  as  a  treaty-breaker,  when  she  might  easily  have 
approached  all  the  signatories  of  the  Treaty  of  Berlin  with  a 
demand  for  the  enlargement  of  her  mandate  of  1878  by  the 
change  of  administrative  into  sovereign  rights.  This  would 
have  led  to  a  conference  in  which  the  whole  group  of  ques- 
tions connected  with  the  Balkan  peninsula  would  have  come 
up  for  settlement.  A  refusal  of  the  Austrian  demand  would 
have  been  unlikely  ;  but,  had  it  occurred,  it  would  then  have 
been  time  for  Austria-Hungary  to  declare  the  situation  in- 
tolerable, and  to  give  notice  that  she  no  longer  held  herself 
bound  by  an  antiquated  and  impossible  treaty.  Her  assump- 
tion of  sovereign  rights  without  any  of  these  preliminary 
steps  jeopardized  the  peace  of  Europe,  undermined  respect 
for  solemn  international  obligations,  imposed  on  her  people 
the  heavy  burden  of  expensive  military  preparations,  and 
brought  down  on  her  at  the  time  a  storm  of  obloquy,  together 
with  the  lasting  resentment  of  millions  of  embittered  Slavs. 
And  in  the  end  she  had  to  ask  for  and  obtain  the  assent  of 
the  Great  Powers,  though  it  was  given  by  means  of  separate 
diplomatic  despatches,  and  not  by  means  of  a  conference  and 
a  new  international  treaty.  It  remains  to  be  seen  whether 
the  method  of  1908  is  superior  to  the  methods  of  1871  and 
1878. 


PAET   III 

THE  LAW  OF   WAR 
CHAPTER    I 

THE  DEFINITION  OF  WAR   AND  OTHER  PRELIMINARY  POINTS 

§135 

WAR  may  be  defined  as  a  contest  carried  on  by  public  force 
between  states,  or  between  states  and  communities  having  with  re- 
gard to  the  contest  the  rights  of  states,  the  parties  The  nature  and 
to  it  having  the  intention  of  ending  peaceful  re-  deflnitlonofwar- 
lotions,  and  substituting  for  them  those  of  hostility  with  all  the 
legal  incidents  thereof.  As  a  rule  both  the  contest  and  the 
intention  described  in  this  definition  must  coexist  in  order 
to  make  a  war.  The  former  without  the  latter  results  in 
reprisals,  not  war,  as  will  be  seen  in  the  next  section.  The 
latter  without  the  former  is  barely  possible  in  the  present 
state  of  international  society,  which  produces  sharp  and  de- 
cisive conflicts  rather  than  a  long  series  of  leisurely  campaigns 
interspersed  with  periods  of  inaction.  It  is  true  that  two 
states  are  said  to  be  at  war  as  soon  as  one  of  them  has  received 
a  declaration  of  war  from  the  other;  but  the  interval  between 
its  reception  and  the  first  act  of  hostility  is  generally  so  short 
as  to  be  negligible. 

Some  authorities  regard  war  as  a  condition.     Grotius,  for 
instance,  defines  it  as  status  per  vim  certantium,  qua  tales  sunt.1 

1  De  Jure  Belli  ac  Pacis,  bk.  I,  ch.  i,  2. 
331 


332  THE   DEFINITION   OF  WAR 

But  we  speak  of  the  condition  of  being  engaged  in  hostilities 
as  "belligerency";  while  we  reserve  the  word  "war"  for 
the  series  of  hostile  acts  that  take  place  during  belligerency. 
War  is  a  contest,  not  a  condition;  and  moreover  it  is  restricted  to 
contests  carried  on  under  state  authority  directly  or  indirectly 
given.  Private  war  has  long  ago  disappeared  from  civilized 
societies.  If  individuals  now  attempt  to  redress  their  real 
or  fancied  wrongs  by  the  might  of  their  own  hands,  they 
are  regarded  by  the  law  as  disturbers  of  the  public  peace, 
and  their  act  is  an  offence  in  itself,  however  gross  may  have 
been  the  injury  that  brought  it  about.  It  sometimes  hap- 
pens that  the  authorization  of  the  state,  though  given  directly, 
is  of  necessity  delayed  for  a  time,  as  when  a  commander  at 
a  distance  from  his  own  country  and  without  means  of  com- 
municating immediately  with  his  government  deems  such  a 
serious  emergency  to  have  arisen  as  necessitates  hostilities  on 
his  part  against  the  local  rulers  and  their  subjects.  In  such 
a  case,  if  his  proceedings  are  adopted  and  ratified  by  his  gov- 
ernment, they  are  state  acts  from  the  first,  and  constitute  a 
regular  war ;  if,  on  the  other  hand,  they  are  disavowed,  they 
are  acts  of  unauthorized  violence  for  which  reparation  must  be 
given.  But  a  war  such  as  was  waged  in  the  autumn  of  1893 
by  the  armed  forces  of  the  British  South  African  Company 
against  Lobengula,  king  of  the  Matabele,  and  his  tribe,  is 
indirectly  a  state  act,  inasmuch  as  it  is  carried  on  by  a  chartered 
corporation  under  authority  granted  by  the  state.  What- 
ever may  be  thought  of  the  policy  of  allowing  private  asso- 
ciations to  exercise  many  of  the  powers  and  prerogatives  of 
sovereignty  in  their  dealings  with  barbarous  races,  it  is  clear 
that  the  international  responsibility  for  their  wars  belongs  to 
the  state  that  has  delegated  to  them  so  many  of  its  functions. 
Their  force  is  its  force;  their  wars  are  its  wars;  and  their 
political  arrangements  are  its  political  arrangements. 

All  war  is  now  public  war.  Even  the  military  and  naval 
operations  of  revolted  provinces  or  colonies  have  a  public 
character  impressed  upon  them  by  the  process  known  as 


AND   OTHER   PRELIMINARY  POINTS  333 

recognition  of  belligerency  ;l  so  that  the  dictum  of  Grotius 
that  civil  war  is  public  on  the  part  of  the  government  and 
private  on  the  part  of  the  rebels 2  is  no  longer  applicable. 
The  other  distinctions  between  different  kinds  of  war  are 
either  unmeaning  or  obsolete.  A  formal  war  was  one  carried 
on  by  public  authority  and  declared  with  due  formality, 
whereas  an  informal  war  wanted  both  these  characteristics. 
But  we  have  just  seen  that  all  modern  wars  are  waged  by  the 
authority  of  the  supreme  power  in  the  state  or  the  commun- 
ity striving  to  become  a  state.  In  a  perfect  war  the  whole 
state  was  said  to  be  placed  in  the  legal  condition  of  belliger- 
ency, and  in  this  sense  of  the  term  all  wars  are  now  perfect. 
An  imperfect  war  was  limited  as  to  persons,  places,  and 
things  ;  and  all  wars  are  now  limited  to  combatants  so  far  as 
active  hostile  operations  are  concerned,  and  must  of  necessity 
be  limited  as  to  places  and  things  since  no  power  can  cover 
the  whole  of  the  possible  area  of  hostilities  with  -  its  armed 
forces.  Again,  war  was  said  to  be  offensive  on  the  part  of 
the  aggressor  in  the  struggle,  and  defensive  on  the  part 
of  those  on  whom  the  quarrel  was  fastened ;  and  a  dis- 
tinction of  the  same  kind  was  signified  by  the  contrast  be- 
tween just  and  unjust  wars,  when  it  was  not  meant  to 
convey  the  ideas  set  forth  by  the  terms/orma?and  informal. 
But  these  are  moral  questions,  and  modern  International 
Law  does  not  pronounce  upon  them.  To  it  war  is  a  fact 
that  alters  in  a  variety  of  ways  the  legal  relations  of  all  the 
parties  concerned.  It  therefore  tells  us  how  the  condition 
of  belligerency  is  created,  and  what  are  the  rights  and  obliga- 
tions of  belligerents  towards  each  other  and  towards  neutrals. 
Butitdoesnot  pronounceupon  the  moral  questions  thatoccupy 
such  a  large  space  in  the  writings  of  the  early  publicists. 
Grotius,3  for  instance,  after  deciding  in  the  affirmative  the 
question  whether  war  can  ever  be  just,  devotes  several  chap- 
ters to  an  attempt  to  distinguish  between  just  and  unjust 

1  See  §  141.  2  De  Jure  Belli  ac  Pads,  bk.  I,  ch.  in,  1. 

8  De  Jure  Belli  ac  Pads,  bk.  I,  ch.  H,  and  bk.  II,  chs.  i,  xx-xxvi. 


334  THE  DEFINITION    OF   WAR 

causes  of  war.  Such  matters  as  these  are  supremely  im- 
portant; but  they  belong  to  morality  and  theology,  and  are 
as  much  out  of  place  in  a  treatise  on  International  Law  as 
would  be  a  discussion  on  the  ethics  of  marriage  in  a  book 
on  the  law  of  personal  status. 

§   136 

War  must  be  distinguished  from  certain  methods  of  apply- 
ing force  which  are  held  not  to  be  inconsistent  with  the 
Reprisals,  or  meth-  continuance  of  peaceful  relations  between  the 
ods  of  putting  powers  concerned,  though  the  distinction  is 

stress  upon  a  -1  ° 

state  by  violence     f  ound  in  the  intent  of  the  parties  rather  than 

which  is  not  held  , ,          ,  .     . ,  .  ,          T 

to  amount  to  in  the  character  of  the  acts  performed.  In  so 
far  as  the  power  against  which  these  latter  are 
directed  is  concerned,  they  are  exactly  the  same  as  would  be 
resorted  to  in  the  case  of  warlike  operations.  But  the  parties 
to  them  do  not  choose  to  regard  themselves  as  belligerents, 
and  do  not  claim  to  subject  other  states  to  the  burdens  and 
disabilities  of  neutrals.  The  diplomatists  on  both  sides  con- 
tinue their  work,  non-combatants  are  not  obliged  to  suspend 
commercial  intercourse  at  places  outside  the  area  of  the  forc- 
ible proceedings,  and  the  legal  concomitants  of  a  state  of 
peace  continue  to  exist.  The  modes  of  putting  stress  upon 
an  offending  state  which  are  of  a  violent  nature,  though  they 
fall  short  of  actual  war,  may  be  spoken  of  generically  as 
reprisals. 

The  term  is  used  in  a  bewildering  variety  of  senses.  Some- 
times it  means  nothing  more  than  a  resort  to  the  lex  talionis 
in  warfare.  A  commander  who  imprisons  the  mayor  of  an 
occupied  town  in  retaliation  for  the  murder  of  a  sentinel  by 
unknown  inhabitants  resorts  to  an  act  of  reprisal ;  but  it  is 
an  incident  of  warfare,  not  an  attempt  to  bring  an  offending 
state  to  terms  by  an  exercise  of  force  that  does  not  amount 
to  war.  Again,  we  sometimes  read  of  negative  reprisals  or 
retortion;  but  these  are  not  acts  of  violence  at  all.  They 
are  carried  on  by  adopting  towards  a  state  that  is  acting  in 


AND   OTHER   PRELIMINARY   POINTS  335 

an  unfriendly,  though  peaceful,  manner  a  similar  line  of  con- 
duct to  that  complained  of  in  it.  They  have  no  connection 
with  force  or  war.  They  take  place,  for  instance,  when 
differential  duties  are  levied  by  one  state  upon  the  products 
of  another  which  has  discriminated  against  the  former  in  its 
tariff,  or  when  one  state  suspends  payments  due  to  another 
till  some  injury  done  to  it  by  the  latter  is  redressed.  The 
older  publicists  make  mention  of  yet  another  form  of  re- 
prisal. They  describe  as  special  reprisals  a  method  frequently 
resorted  to  in  the  Middle  Ages,  and  sometimes  in  later  peri- 
ods, for  the  indemnification  of  private  individuals  for  injuries 
and  losses  inflicted  on  them  by  subjects  of  other  nations. 
Letters  of  marque  were  issued  by  the  sovereign  to  those  who 
had  been  wronged,  and  they  were  thereby  authorized  to  re- 
coup themselves  by  capturing  vessels  and  cargoes  of  the 
offending  nationality.  And  even  after  this  legitimation  of 
private  warfare  had  come  to  be  regarded  as  outrageous  and 
unworthy,  a  state  occasionally  sent  out  some  of  its  warships 
with  instructions  to  capture  private  vessels  of  the  other  side 
in  sufficient  numbers  to  reimburse  its  subjects  for  the  losses 
they  had  sustained.  Oliver  Cromwell,  for  instance,  gave 
redress  in  this  way  to  a  Quaker  merchant  whose  vessel  had 
been  illegally  seized  and  confiscated  by  the  French.  He 
sent  the  injured  person  to  Cardinal  Mazarin  with  a  demand 
for  restitution.  And  when  the  request  was  ignored,  two 
English  warships  were  despatched  to  seize  French  merchant- 
men in  the  Channel.  The  Quaker  was  compensated  out  of 
the  proceeds  of  the  sale  of  the  prizes,  and  the  balance  was 
handed  over  to  the  French  ambassador.1  But  the  rise  of 
modern  notions  of  state  responsibility,  and  the  increase  of 
the  power  of  governments,  have  caused  special  reprisals  to 
fall  into  disuse.  The  wronged  individual  would  now  be 
told  by  the  rulers  of  his  country  that  they  would  endeavor 
to  obtain  redress  for  him  from  the  country  to  which  the 
offender  belonged.  A  diplomatic  correspondence  would 

1  Phillimore,  Commentaries,  part  IX,  ch.  II. 


336  THE   DEFINITION   OF   WAR 

ensue,  and,  if  the  complaint  was  well  founded,  redress  would 
in  all  probability  be  given.  But  the  transaction  would  be 
one  between  the  states  concerned,  and  the  individuals  with 
regard  to  whom  the  case  arose  would  do  no  more  than  com- 
municate each  with  his  own  government.  The  only  kind  of 
reprisals  of  a  forcible  character  known  to  modern  Interna- 
tional Law  is  what  used  to  be  called  by  way  of  distinction 
general  reprisals.  They  take  place  when  a  state  that  deems 
itself  aggrieved  performs  warlike  operations  without  the 
intent  of  making  war.  It  may  put  pressure  on  the  offending 
state  by  seizing  or  destroying  property,  holding  territory,  or 
capturing  places  or  vessels ;  and  unless  the  power  that 
suffers  any  or  all  of  these  things  retaliates  by  declaring  war, 
International  Law  holds  that  what  goes  on  is  not  war,  but 
only  reprisals.  A  conspicuous  instance  was  afforded  by  the 
hostile  acts  of  France  against  China  in  1884  and  1885.  The 
French  Government  felt  aggrieved  by  the  constant  presence 
of  bands  of  Chinese  among  the  forces  of  Tonquin,  which  it 
was  then  engaged  in  subduing;  but  it  did  not  wish  to  take 
the  extreme  measure  of  waging  regular  war  against  China. 
It,  therefore,  adopted  what  the  French  Prime  Minister,  M. 
Jules  Ferry,  described  as  a  policy  of  intelligent  destruction. 
A  French  fleet  bombarded  the  arsenal  of  Foo-Chow  and  took 
possession  of  certain  points  on  the  Chinese  island  of  Formosa; 
but  negotiations  were  going  on  all  the  while  with  China,  the 
diplomatic  ministers  were  not  withdrawn,  and  a  state  of  war 
was  not  held  to  exist  between  the  two  countries.1  Other 
recent  examples  are  afforded  by  the  seizure  of  the  custom- 
house at  Mitylene  by  France  in  1901,  and  again  in  1905  by 
an  international  squadron,  the  object  on  both  occasions  being 
to  put  pressure  on  Turkey.  The  last  case  occurred  in  1908 
when  the  Dutch  captured  two  Venezuelan  coastguard  ships 
in  order  to  compel  the  cessation  of  various  grievances  for 
which  they  had  endeavored  in  vain  to  obtain  redress  by 

1  Annual  Register,  1884,  PP-  280,  281,  369-376 ;  Annual  Register,  1885, 
pp.  206-214,  330-335. 


AND   OTHER   PRELIMINARY   POINTS  337 

diplomatic  means.  We  see  by  these  instances  that  the  in- 
ternational acts  of  force  comprised  under  the  head  of  re- 
prisals are  varied  and  numerous.  The  chief  differences 
between  them  and  war  are  that  they  do  not  rupture  diplo- 
matic relations  and  abrogate  treaties,  and  they  are  limited  in 
their  scope  and,  as  a  rule,  localized  in  their  operation.  Two 
varieties  of  them  are  important  enough  to  require  particular 
description. 

§137 
The  first  of  these  special  kinds  is 

Embargo, 

or,  more  accurately,  hostile  embargo.  Embargo  pure  and 
simple  is  nothing  more  than  the  detention  of  ships  in 
port;  and  it  may  be  put  in  force  for  good  reason  by  a 
state  against  its  own  vessels,  as  was  done 
by  the  United  States  in  1807,  when  to  avoid 
the  violent  action  of  both  French  and  English  cruisers 
neutral  American  merchantmen  were  for  a  time  prevented 
from  leaving  American  ports  by  the  act  of  their  own  gov- 
ernment.1 A  detention  of  this  kind  is  called  pacific  embargo, 
and  it  has  no  necessary  connection  with  any  attempt  to  obtain 
redress  for  injuries  received.  But  when  merchant  vessels  of 
an  offending  state  are  detained  in  the  ports  of  a  state  that 
deems  itself  aggrieved,  we  have  an  instance  of  such  an  at- 
tempt, and  it  is  called  hostile  embargo.  The  legal  effects  of 
hostile  embargo  were  stated  by  Lord  Stowell  in  a  luminous 
judgment  in  the  cases  of  the  Boedes  Lust?  which  arose  in 
1803.  After  the  rupture  of  the  Peace  of  Amiens,  Great 
Britain  had  good  reason  to  believe  that  Holland  was  only 
waiting  for  an  opportunity  in  order  to  join  France  against 
her.  An  embargo  was,  therefore,  laid  on  all  Dutch  vessels 
in  British  ports  with  the  object  of  inducing  Holland  to  give 

1  Moore,  International  Laic  Digest,  vol.  VTI,  p.  143. 
8  C.  Robinson,  Admiralty  Reports,  vol.  V,  pp.  244-251. 
z 


338  THE   DEFINITION   OF   WAR 

up  her  alliance  with  Napoleon.  Its  effect  was  just  the  con- 
trary. War  broke  out,  and  the  question  of  the  legal  effect 
of  the  original  seizure  of  the  Dutch  vessels  came  before  a 
prize  court.  Lord  Stowell  laid  down  that  hostile  embargo 
was  at  first  equivocal  in  its  legal  aspects  and  its  real  character 
was  determined  by  the  events  that  followed  it.  If  war  broke 
out,  its  commencement  had  a  retroactive  effect  and  made 
the  seizure  belligerent  capture  from  the  first.  If  satisfaction 
was  given  and  friendship  restored  between  the  two  states, 
the  original  seizure  amounted  to  nothing  more  than  temporary 
sequestration,  and  worked  no  disturbance  of  proprietary 
rights.  In  the  latter  half  of  the  eighteenth  century  and  the 
early  years  of  the  nineteenth,  embargo  was  often  resorted  to 
in  contemplation  of  hostilities.  If  a  state  found  in  its  ports 
a  considerable  number  of  vessels  belonging  to  a  probable  ad- 
versary, it  was  apt  to  seize  the  opportunity  and  lay  hands 
upon  them  before  the  actual  outbreak  of  war.  But  the 
growth  of  commercial  interests,  and  a  quickened  sense  of 
justice,  caused  the  practice  to  be  discontinued ;  and  in  modern 
times  belligerents  have  generally  gone  further,  and  refrained 
from  capturing  the  merchant  vessels  of  the  enemy  found  in 
their  ports  at  the  commencement  of  a  war,  allowing  them  in- 
stead a  fixed  period  in  which  to  depart  without  molestation. 
The  right  to  confiscate  remained,  but  as  an  act  of  grace  it 
was  not  exercised.  It  was,  however,  taken  away  by  the 
Sixth  Convention  of  the  Hague  Conference  of  1907,  which 
substituted  for  it  less  onerous  measures,  except  in  the  case 
of  merchantmen  so  built  as  to  be  easily  converted  into 
warships.  Such  vessels  as  these  may  still  be  confiscated 
outright,  when  they  belong  to  a  belligerent  and  have  the 
misfortune  to  be  lying  in  a  port  of  its  adversary  at  the 
moment  when  war  breaks  out. 

§   138 

The   second  variety  of  reprisals    to  which  we  must  give 
special  attention  is  the  practice  called 


AND  OTHER   PRELIMINARY  POINTS  339 

Pacific  Blockade. 

It  takes  place  when  a  power  that  considers  itself  ag- 
grieved, institutes  a  blockade l  of  a  port  or  ports  of  the  state 
it  deems  to  have  offended,  without  at  the  same  pacific 
time  putting  the  general  relations  between  them  b 
on  a  hostile  footing.  The  first  instance  of  it  occurred  in 
1827,  when  Great  Britain,  France,  and  Russia  blockaded  the 
coasts  of  Greece  in  order  to  cut  off  supplies  from  the 
Turkish  force  operating  on  the  Greek  mainland,  and  thus 
induce  Turkey,  with  whom  they  remained  at  peace,  to  accept 
their  mediation  in  its  war  with  its  revolted  Greek  subjects.2 
From  that  time  onwards  pacific  blockades  have  been  resorted 
to  at  intervals,  as  a  means  of  putting  pressure  to  bear  upon 
states  with  whom  it  was  not  deemed  necessary  or  desirable 
to  resort  to  regular  hostilities.  At  first  the  new  practice 
was  somewhat  haphazard  in  its  character;  but  as  it  hardened 
into  an  international  habit  a  divergence  showed  itself  be- 
tween the  views  of  Great  Britain  and  France.  The  former 
held  that  the  power  which  establishes  a  pacific  blockade 
gains  thereby  no  right  to  interfere  with  the  shipping  of 
states  who  are  not  parties  to  the  quarrel,  and  as  against  the 
vessels  of  its  adversary  its  rights  do  not  extend  to  confisca- 
tion, but  stop  at  sequestration.  The  latter  maintained  that 
the  blockading  state  was  at  liberty  to  capture  and  confiscate 
not  only  the  ships  of  the  blockaded  state,  but  those  of  third 
powers  also  if  they  attempted  to  cross  the  lines  of  the  block- 
aders.  The  matter  came  to  a  head  in  1884,  when  the  French 
established  what  they  regarded  as  a  pacific  blockade  of  part 
of  the  coast  of  Formosa,  as  an  incident  of  their  operations 
for  reducing  China  to  terms  without  a  resort  to  open  war. 
But,  inasmuch  as  they  claimed  a  right  to  capture  vessels  of 
third  powers,  Great  Britain  protested.  The  French  Govern- 
ment declared  that  its  public  armed  ships  would  not  resort 
to  search  and  capture  on  the  high  seas,  but  would  seize  any 

1  See  Part  IV,  ch.  V. 

2  Holland,  Studies  in  International  Law,  pp.  136,  137. 


340  THE   DEFINITION   OF   WAR 

merchantman,  whether  of  Chinese  or  other  nationality,  that 
attempted  to  enter  the  blockaded  ports;  and  Earl  Granville, 
who  was  then  the  English  Secretary  for  Foreign  Affairs, 
replied  that  in  that  case  Great  Britain  was  obliged  to  hold 
that  a  state  of  war  existed  between  France  and  China,  and 
must  put  in  force  her  neutrality  regulations  in  the  ports  of 
Singapore  and  Hongkong.  In  consequence  of  this  France 
claimed  and  exercised  full  belligerent  rights  against  neu- 
trals ;  but  the  matter  was  settled  almost  immediately  by  the 
restoration  of  normal  pacific  relations  with  China.1  Events 
took  much  the  same  course  in  1893,  when  France  claimed  a 
right  to  interfere  with  British  merchantmen  in  the  course 
of  her  pacific  blockade  of  the  mouth  of  the  Menam  in  order 
to  induce  Siam  to  accept  her  terms.  For  a  short  time 
matters  looked  serious  ;  but  the  satisfaction  of  the  French 
demands  by  the  Siamese  Government  put  an  end  to  the 
incident. 

Meanwhile  opinion  and  practice  were  ranging  themselves 
on  the  side  of  the  less  onerous  doctrine.  In  1886  the  Great 
Powers,  with  the  exception  of  France,  established  a  pacific 
blockade  of  the  coasts  of  Greece,  in  order  to  prevent  the 
Greeks  from  making  war  on  Turkey,  and  thus  precipitat- 
ing a  great  European  struggle.  The  allied  fleets  abstained 
from  molesting  the  vessels  of  powers  unconnected  with  the 
quarrel.  They  were  instructed  to  detain  all  vessels  under 
the  Greek  flag  attempting  to  run  the  blockade,  but  it  was 
added  that  even  Greek  ships  were  not  to  be  seized  when  any 
part  of  their  cargo  belonged  to  subjects  of  a  state  other  than 
Greece  or  the  blockading  powers,  should  such  cargo  have 
been  shipped  before  notification  of  the  blockade,  or  after 
notification  but  under  a  charter  made  before  notification. 
The  blockade  was  raised  in  a  few  weeks  in  view  of  the 
pacific  assurances  of  a  new  ministry  and  the  commencement 
of  Greek  disarmament;  and  while  it  lasted  no  protests  were 

1  British  Parliamentary  Papers,  France,  No.  1  (1886),  pp.  1-13  ;  French 
State  Papers,  Affaires  de  Chine  (1885),  pp.  1-15. 


AND   OTHER   PRELIMINARY   POINTS  341 

raised  by  states  unconnected  with  it.1  In  the  following 
year  the  Institute  of  International  Law  resolved  at  Heidel- 
berg that  pacific  blockade  was  legal,  if  it  was  effective,  and 
duly  notified,  and  did  not  interfere  with  ships  under  a  foreign 
flag,  and  applied  to  the  vessels  that  were  seized  no  further 
severity  than  detention  during  its  continuance,  with  release, 
though  without  compensation,  at  its  termination.2 

The  next  few  years  produced  the  two  anomalous  cases  of 
Zanzibar  and  Crete.3  The  operations  that  took  place  in 
them  are  usually  classed  as  pacific  blockades,  but  would  be 
more  accurately  described  as  measures  of  international  police 
in  which  something  analogous  to  a  blockade  bore  the  princi- 
pal part.  In  both  cases  the  local  sovereign  gave  his  consent 
to  what  was  done  ;  whereas  ordinary  pacific  blockades  re- 
semble warlike  blockades  in  being  undertaken  against  his 
will,  and  in  order  to  coerce  him.  In  the  case  of  Zanzibar  in 
1888  and  1889  the  Western  powers  brought  pressure  to  bear 
on  insurgents  and  slave  traders.  In  the  case  of  Crete  in 
1897  the  Great  Powers  of  Europe  brought  pressure  to  bear 
on  Greece,  who  wished  to  acquire  the  island,  and  on  the 
Cretan  patriots,  who  wished  to  wrest  it  from  Turkey  in 
order  that  it  might  unite  with  the  Greek  kingdom.  They 
also  prevented  the  Sultan  from  making  any  attempt  to 
reduce  it.  In  neither  case  were  the  ordinary  rules  of  block- 
ade, whether  pacific  or  warlike,  applied  in  their  entirety. 
In  both,  vessels  on  some  errands  were  let  through,  and 
vessels  on  others  stopped.  In  the  case  of  Crete  all  Greek 
ships  were  seized,  but  the  ships  of  other  nations,  including 
the  six  blockading  powers,  were  allowed  to  enter  and  land 
their  merchandise,  if  it  was  not  destined  for  the  Greek 
troops  or  for  the  interior  of  the  island.  Thus  the  block- 
aders  contrived  most  ingeniously  to  violate  the  law  of  block- 

1  British  Parliamentary  Papers,  Greece,  No.  4  (1886),  p.  14. 
2Annuaire  de  Vlnstitut  de  Droit  International,  1887-1888,  pp.  300,  301. 
8  Holland,  Studies  in  International  Law,  pp.  139,  140,  146-150 ;  Moore, 
International  Law  Digest,  vol.  VII,  pp.  138-140. 


342  THE    DEFINITION   OF    WAR 

ade,  under  whichever  head  of  it  they  chose  to  class  then 
operations.  If  it  was  warlike  blockade,  they  had  no  right 
to  discriminate  against  ships  of  any  nation,  or  ships  engaged 
in  any  particular  form  of  lawful  trade,  but  were  bound  to 
exclude  all  alike.  If  it  was  pacific  blockade,  according  to 
the  generally  accepted  view,  they  had  no  right  to  stop  ships 
of  powers  unconnected  with  the  dispute;  and  though,  accord- 
ing to  the  French  variant  they  might  do  this,  they  certainly 
might  not  let  their  own  ships  through  on  conditions  while 
excluding  Greek  ships  absolutely.  Their  measures  may 
have  been  well  adapted  to  the  peculiar  circumstances  they 
had  to  meet.  But  pacific  blockade  in  any  previously  ac- 
cepted sense  of  the  term  assuredly  they  were  not. 

Passing  by  these  anomalous  cases,  we  come  next  to  the 
blockade  of  Venezuelan  ports  by  Great  Britain  and  Germany 
in  the  winter  of  1902-1903,  in  order  to  compel  the  settlement 
of  pecuniary  claims.  As  there  was  no  intention  of  invading 
the  country  or  seizing  any  portion  of  its  territory,  Germany 
was  at  first  disposed  to  resort  to  a  pacific  blockade,  but 
yielded  in  the  end  to  the  wishes  of  Great  Britain  and  estab- 
lished a  state  of  war  with  Venezuela,  though  no  formal  dec- 
laration of  war  was  made.  The  reason  for  this  was  that  both 
powers  wished  to  be  able  to  stop  neutral  shipping,  and  knew 
that  unless  they  were  belligerents  they  would  not  have  a  legal 
right  to  do  so.  In  the  case  of  Germany  an  intimation  that 
the  United  States  did  not  "  acquiesce  in  any  extension  of  the 
doctrine  of  pacific  blockade  which  may  adversely  affect  the 
rights  of  states  not  parties  to  the  controversy,  or  discrimi- 
nate against  the  commerce  of  neutral  nations  "  contributed 
towards  her  change  of  view.  On  December  20, 1902,  a  notice  of 
warlike  blockade  was  issued  for  the  information  of  neutrals ; 
and  the  operations  against  Venezuela  were  undoubtedly  a  war, 
though  a  little  one.1  They  were  concluded  by  a  formal  agree- 
ment in  February,  1903.  The  diplomatic  history  of  the  ques- 
tion shows  clearly  that  the  view  of  pacific  blockade  taken  by  the 
1  Moore,  International  Law  Digest,  vol.  VII,  pp.  140,  141. 


AND  OTHER   PRELIMINARY  POINTS  343 

Institute  of  International  Law  is  prevailing.  It  is  held  now  by 
nearly  all  the  jurists  of  the  civilized  world;  and  we  may  hope 
that  it  will  receive  the  consecration  of  general  assent  on  the 
part  of  the  powers  at  the  next  Hague  Conference.  It  is  the 
only  one  consistent  with  sound  principle,  since  no  power  has 
the  right  to  prevent  the  ships  of  other  powers  from  trading  in 
time  of  peace  with  ports  opened  to  them  by  the  local  sovereign. 
But  if  no  trade  other  than  that  of  the  blockading  and  the 
blockaded  powers  is  molested,  it  is  impossible  to  say  that  any 
international  offence  is  committed.  The  parties  immediately 
concerned  must  be  allowed  to  settle  their  disagreement  in 
their  own  way,  as  long  as  they  do  not  interfere  with  the  rights 
of  those  who  have  no  concern  with  the  matter  in  dispute. 
The  question  whether  the  vessels  seized  by  the  blockaders 
should  be  confiscated  or  sequestrated  is  a  comparatively  small 
one,  as  long  as  the  seizures  are  confined  to  ships  of  the  power 
against  which  the  blockade  is  instituted.  It  might  well  be  left 
to  the  blockading  government.  The  treatment  would  then  in 
all  probability  be  varied  according  to  the  circumstances  of  the 
case.  If  the  controversy  arose  about  a  pecuniary  claim,  con- 
fiscation of  vessels  till  their  value  reached  the  amount  in  dis- 
pute would  be  a  natural  and  unexceptionable  way  of  obtain- 
ing satisfaction,  when  the  mercantile  marine  of  the  state 
accused  of  delinquency  afforded  prizes  of  sufficient  richness. 

§  139 

The  power  against  which  reprisals  of  any  kind  are  insti- 
tuted can,  if  it  pleases,  resort  to  war  in  return  ;  and  it  is  cer- 
tain that  any  powerful  and  high-spirited  nation  The  value  and 


would  do  so.     Self-respect  would  forbid  it  to  admissibuny  of 

.  .  reprisals. 

give  way  under  violent  and  coercive  pressure, 
though  it  might  have  been  willing  to  settle  the  question  at 
issue,  after  negotiation,  by  some  acceptable  concession.     But 
in  cases  where  a  strong  state  or  group  of  states  finds  itself 
obliged  to  undertake  what  are  practically  measures  of  police 


344  THE   DEFINITION   OF   WAR 

against  weak  and  recalcitrant  powers,  one  or  other  of  the 
means  just  described  may  be  a  useful  alternative  to  war. 
They  are  less  destructive  and  more  limited  in  their  operation. 
It  is  true  that  they  may  be  used  to  inflict  injury  on  small 
states,  and  extort  from  them  a  compliance  with  unreasonable 
demands.  But  war  can  be  equally  unjust,  and  would  cer- 
tainly cause  more  suffering.  There  seems  no  reason  to  en- 
deavor to  banish  from  International  Law  its  sanction  of  these 
anomalous  operations,  which  are  neither  wholly  warlike  nor 
wholly  peaceful.  What  should  be  done  is  to  create  a  strong 
public  opinion  against  their  use  on  slight  provocation,  or  for  a 
manifestly  unjust  cause.  Moreover,  it  is  necessary  to  guard 
against  a  new  danger  which  has  arisen  in  consequence  of  the 
decision  of  the  last  Hague  Conference  that  formal  declarations 
of  war  must  precede  the  commencement  of  hostilities.1  This 
rule  does  not,  of  course,  apply  to  measures  that  are  not  war, 
though,  like  war,  they  involve  acts  of  force.  Consequently 
strong  powers  may  be  tempted  to  evade  the  new  obligation 
by  making  sudden  attacks  on  weak  states  under  the  guise  of 
reprisals.  Professor  Westlake  proposes  to  meet  this  danger 
by  a  rule  to  the  effect  that  no  form  of  reprisal  "  shall  be  used 
against  any  state  unless  it  refuses  or  neglects  to  reply  to  an 
offer  of  arbitration,  or,  after  accepting  the  offer,  prevents  any 
agreement  of  reference  from  being  concluded,  or,  after  an 
arbitration,  refuses  to  submit  to  an  award."  He  suggests 
that  the  next  Hague  Conference  should  enact  something  of 
the  kind,  and  points  out  that  in  so  doing  it  would  only  be 
following  the  precedent  set  by  its  predecessor  with  regard  to 
forcible  modes  of  recovering  contract  debts  claimed  by  the 
government  of  one  state  as  due  to  its  subjects  by  the  .govern- 
ment of  another.2  The  plan  seems  feasible,  and  we  may  hope 
that  its  distinguished  author  will  be  able  in  a  few  years  to 
rejoice  over  its  adoption.  There  is  great  need  of  interna- 
tional legislation  on  the  subject  of  reprisals. 

1  See  §  140. 

2  Law  Quarterly  Review,  April,1909,  p.  136.    See  §  221. 


AND   OTHER   PRELIMINARY   POINTS  345 

§140 

A  declaration  of  war  is  a  formal  notification  on  the  part 
of  a  state  that  it  considers  itself  at  war  with  another  state  to 
which  the  notification  is  sent.  The  question  whether  such 
declarations  are  necessary  was  answered  in  the  affirmative 
by  the  Hague  Conference  of  1907.  But  before  we  give  the 
exact  terms  in  which  it  ended  a  controversy  as  old  as  Inter- 
national Law,  it  will  be  advisable  to  state  very  briefly  how 
matters  stood  before  its  intervention.  Among  the  early 
publicists  there  was  a  great  preponderance  of  opinion  in  fa- 
vor of  the  doctrine  that  no  state  ought  to  commence  hostili- 
ties before  it  had  sent  to  its  opponent  a  formal  notice  of  its 
intention  to  fight.  But  if  we  turn  to  practice  we  find  that, 
though  in  the  Middle  Ages  heralds  were  generally  despatched 
with  much  ceremony  to  give  the  enemy  warning,  sometimes 
the  notice  itself  was  turned  into  an  insult,  as  when 
Charles  V  of  France  declared  war  in  1369  against  Edward  III 
of  England  by  a  letter  the  bearer  of  which  was  a  common  ser- 
vant.1 After  the  decay  of  the  mediaeval  order  the  use  of 
heralds  gradually  ceased.  It  was  followed  by  formal  dip- 
lomatic statements  to  the  other  side  of  a  determination  to 
commence  hostilities.  But  these  were  often  omitted,  and  at 
last  in  the  eighteenth  century  they  become  the  exception 
rather  than  the  rule.  Such  declarations  as  we  do  find  were 
made  more  often  than  not  some  time  after  acts  of  hostility 
had  been  going  on.  For  instance,  fighting  commenced  be- 
tween England  and  France  by  land  and  sea  in  1754,  but  the 
formal  declarations  of  war  were  not  made  till  1756.  One 
more  case  will  suffice  out  of  the  many  that  lie  ready  to  hand. 
At  the  end  of  1787  Austria  seized  various  Turkish  fortresses, 
but  she  did  not  declare  war  till  February,  1788. 2  Little 
change  took  place  till  the  latter  part  of  the  nineteenth  cen- 
tury, when  the  practice  of  making  declarations  before  resort- 

1  Ward,  History  of  the  Law  of  Nations,  vol.  II,  p.  208. 

2  Maurice,  Hostilities  without  Declaration  of  War,  pp.  20,  21,  26,  27. 


346  THE   DEFINITION  OP   WAR 

ing  to  the  use  of  force  showed  signs  of  revival.  In  1870  the 
French  charge  d'affaires  at  Berlin  handed  in  a  formal  decla- 
ration of  war  before  the  outbreak  of  hostilities  between 
France  and  Prussia,  and  in  1877  a  despatch  declaring  war 
was  given  to  the  Turkish  representative  at  St.  Petersburg. 

With  such  a  history  as  this  behind  them,  it  is  evident  that 
modern  jurists  could  not  insist  on  the  ancient  view  that  In- 
ternational Law  required  a  formal  declaration  of  war  as*  a 
preliminary  to  any  warlike  acts,  or  at  least  as  contemporary 
with  them.  The  contrary  doctrine  that  no  declaration  is 
necessary  was  the  only  one  that  could  be  deduced  from  the 
practice  of  nations ;  and  practice  was  the  only  evidence  of 
their  consent  before  the  existence  of  a  general  international 
agreement  embodied  in  a  binding  document.  We  find, 
therefore,  that  most  writers  on  the  subject  uphold  the  latter 
view,  though  there  still  remain  some  who  follow  the  ancient 
authorities,  in  a  laudable  endeavor  to  provide  against 
treacherous  attacks.  But  their  zeal  for  righteousness  causes 
them  to  fall  into  the  old  confusion  between  what  is  and  what 
ought  to  be.  International  morality  does  undoubtedly  demand 
that  no  hostile  operations  shall  be  commenced  without  warn- 
ing. This  is,  however,  a  very  different  thing  from  com- 
mencing without  declaration.  To  attack  another  state  in  a 
period  of  profound  peace,  without  having  previously  formu- 
lated claims  and  endeavored  to  obtain  satisfaction  by  diplo- 
matic means,  would  amount  to  an  act  of  international  brig- 
andage, and  would  probably  be  treated  accordingly.  But 
the  state  of  things  set  up  by  such  abominable  means  would 
nevertheless  be  war,  and  both  sides  would  be  expected  to  carry 
on  their  operations  according  to  the  laws  of  war.  When  in 
1904  Admiral  Togo  made  his  celebrated  dash  on  the  Russian 
fleet  in  the  outer  harbor  of  Port  Arthur,  Japan  was  im- 
mediately accused,  not  of  being  engaged  in  operations  that 
could  not  be  regarded  as  war,  but  as  having  commenced  a  war 
by  "  a  treacherous  attack."  l  The  facts  of  the  case  lent  no 

1  Russian  Manifesto  of  February  18,  1904.  See  Takahashi,  International 
Law  Applied  to  the  Russo-Japanese  War,  p.  8. 


AND  OTHER  PRELIMINARY  POINTS  347 

countenance  to  this  view.  Negotiations  had  been  going  on 
without  avail  since  July,  1903.  On  February  6,  1904,  the 
Japanese  minister  at  St.  Petersburg  handed  to  Count  Lams- 
dorff,  the  Russian  Foreign  Secretary,  a  note  which  not  only 
broke  off  diplomatic  negotiations,  but  added  that  the  gov- 
ernment of  Japan  "reserved  to  themselves  the  right  to  take 
such  independent  action  as  they  may  deem  best  to  consolidate 
and  defend  their  menaced  position."  This  was  an  unmistak- 
able warning  that  hostilities  might  be  expected  at  any  moment. 
On  the  day  it  was  delivered  the  Japanese  squadron  sailed 
from  Sasebo  and  one  of  its  vessels  captured  a  cruiser  of  the 
Russian  Volunteer  Fleet.  On  the  8th  the  Russian  warships  at 
Port  Arthur  were  seriously  damaged  by  Japanese  torpedo  boats, 
and  on  the  9th  an  action  was  fought  off  Chemulpo,  as  a  re- 
sult of  which  a  Russian  cruiser  and  gunboat  were  destroyed. 
After  acts  of  hostility  had  been  going  on  for  four  days, 
Japan  published  a  formal  declaration  of  war  on  February  10. 1 
There  can  be  no  doubt  that  the  conduct  of  the  island  em- 
pire on  this  occasion  was  in  no  way  open  to  the  charge  of 
treachery.  It  was  well  within  approved  precedents.  But  the 
controversy  it  provoked  called  the  attention  of  the  civilized 
world  to  the  matter ;  and  the  obvious  unreality  of  making 
declarations  of  war  some  time  after  the  war  has  commenced 
was  incapable  of  explanation  on  any  reasonable  grounds.  No 
doubt  it  had  become  a  settled  rule  of  International  Law  in 
such  cases  to  date  the  commencement  of  war,  with  all  the 
legal  changes  it  involves,2  from  the  first  act  of  hostility. 
But  it  is  often  difficult  to  settle  what  is  the  first  act  of 
hostility.  Expert  opinions  have  differed  as  to  the  particular 
war  we  are  now  discussing.  A  Japanese  prize  court  at 
Sasebo  decided  in  the  case  of  the  Argun  that  "the  war  com- 
menced when  the  Japanese  fleet  left  Sasebo  with  the  inten- 
tion of  attacking  the  Russian  fleet";  but  a  higher  court 
declared  soon  after  in  the  case  of  the  Mukden  that  the  state 

1  Takahashi,  International   Law  Applied  to    the  Busso-Japanese  War, 
pp.  14,  15,  761.  2  See  §§  143-146. 


348  THE  DEFINITION   OF   WAR 

of  war  between  the  two  countries  dated  from  the  capture 
of  the  Ekaterinotlav,  the  first  vessel  seized  by  Admiral 
Togo's  squadron  on  its  way  to  Port  Arthur.1  Clearly  there 
were  strong  grounds  for  what  may  be  termed  international 
legislation  on  the  matter.  And  it  was  equally  clear  that  the 
objects  of  any  such  legislation  must  be  to  provide  for  a  notice 
so  unequivocal  in  character  that  no  charge  of  treachery  could 
arise,  to  remove  all  doubt  as  to  the  exact  moment  when  a 
state  of  war  was  substituted  for  a  state  of  peace,  and  to  secure 
for  neutrals  immediate  notice  of  an  event  that  makes  so  im- 
portant a  change  in  their  own  rights  and  duties.  The  second 
Hague  Conference  set  itself  to  accomplish  these  ends,  and  its 
efforts  were  successful.  The  third  of  its  Conventions  dealt 
with  the  subject,  and  the  first  article  laid  down  that  hostilities 
between  the  contracting  powers  "  must  not  commence  with- 
out previous  and  explicit  warning,  in  the  form  either  of  a 
declaration  of  war  with  the  reasons  assigned  for  it  or  of  an 
ultimatum  with  conditional  declaration  of  war."  It  is  ob- 
vious that  these  words  apply  only  to  the  side  which  decides 
to  resort  to  immediate  hostilities,  and  not  to  that  which 
awaits  action  on  the  part  of  its  adversary,  even  though  it 
may  have  so  acted  as  to  force  on  the  war  of  set  purpose,  and 
be  so  well  prepared  that  it  strikes  the  first  blow.  The  posi- 
tion of  neutrals  was  defined  and  protected  in  the  second  article, 
which  provided  that  "  the  existence  of  a  state  of  war  must  be 
notified  to  the  neutral  powers  without  delay,  and  shall  not 
take  effect  in  regard  to  them  until  after  the  receipt  of  a 
notification,  which  may,  however,  be  given  by  telegraph." 
But  in  the  absence  of  such  a  notification  the  rights  and 
duties  of  neutrals  will  accrue  to  states,  "if  it  is  clearly 
established  that  they  were  in  fact  aware  of  the  existence 
of  a  state  of  war."  2 

1  Takabashi,  International  Law  Applied  to  the  Russo-Japanese  War, 
pp.  23,  602. 

2  Higgins,  The,  Hague  Peace  Conferences,  pp.  198,  199 ;  Whittuck,  Inter- 
national Documents,  p.    121 ;    Supplement  to  the  American  Journal  of 


AND   OTHER   PRELIMINARY   POINTS  349 

The  Convention  has  been  signed  by  all  the  powers  repre- 
sented at  the  Conference  with  the  exception  of  China  and 
Nicaragua.  What  it  asserts  may  therefore  be  regarded  as  the 
law  of  the  civilized  world.  It  is  true  that  the  phrasing  of 
the  articles  does  not  in  so  many  words  pledge  the  con- 
tracting powers  to  commence  their  future  wars  with  formal 
declarations.  But  when  they  are  made  to  say  that  hostilities 
must  not  commence  without  declaration,  they  do  in  effect 
pledge  themselves  to  declare,  since  no  power  would  care  to 
face  the  accusation  of  violating  a  rule  after  stating  in  a  solemn 
international  agreement  that  it  ought  always  to  be  observed. 
It  is  important  to  note  that,  according  to  the  terms  of  the 
first  article  of  the  Convention,  the  declaration  must  be  issued 
before  the  first  act  of  force  takes  place  {prealable}.  It  must 
also  be  perfectly  clear  and  unmistakable  in  its  terms  (non 
^quivoque),  and  must  give  reasons  why  the  state  that  issues 
it  has  resorted  to  war  (motivSe).  The  attempt  of  Holland 
to  secure  an  interval  of  twenty-four  hours  between  notice 
and  attack  failed.  The  blow  may  fall  immediately  after  the 
declaration  is  made.  But,  treachery  apart,  in  no  case  when 
common  prudence  has  been  exercised  can  a  state  be  taken 
altogether  unawares;  for  sudden  demands  which  have  not 
been  answered  and  negotiated  upon  cannot  supply  the 
material  for  the  reasoned  declaration  that  is  required.  No 
law  can  prevent  deliberate  perfidy.  All  that  can  be  done 
by  the  legislator  is  to  make  it  difficult,  and  this  the  second 
Hague  Conference  has  accomplished  with  regard  to  the 
matter  before  us.  On  the  other  hand  its  regulations  do  not 
deprive  a  well-prepared  power  of  the  advantage  of  striking 
the  first  blow,  for  "notice  to  your  adversary  that  you  are 
tired  of  negotiating  and  mean  to  fight  is  by  no  means  the 
same  thing  as  notice  that  you  will  attack  at  a  given  place, 
on  a  given  day,  and  at  a  given  time." 1 

International  Law,  vol.  2,  pp.  86,  87;  British  Parliamentary  Papers,  Mis- 
cellaneous, No.  6  (1908),  p.  43. 

1  Lawrence,  International  Problems  and  Hague  Conferences,  p.  90. 


350  THE  DEFINITION   OF   WAR 

The  Convention,  as  we  have  seen,  offers  an  alternative  to 
a  declaration  of  war  in  the  shape  of  an  ultimatum  with  con- 
ditional declaration.  When  one  power  makes  demands  on 
another,  and  couples  with  them  an  intimation  that  war  will 
be  the  cost  of  their  rejection,  it  is  said  to  present  an  ultima- 
tum; and  when  the  ultimatum  contains  a  statement  to  the 
effect  that  unless  a  favorable  reply  is  given  by  a  certain 
time  hostilities  will  then  begin,  it  is  an  ultimatum  with  con- 
ditional declaration  of  war.  If  it  is  left  unanswered,  or 
answered  unfavorably,  a  state  of  war  commences  at  the 
time  named,  no  further  declaration  being  required.  A  recent 
example  is  to  be  found  in  the  despatch  delivered  to  the 
British  agent  at  Pretoria  on  behalf  of  the  South  African 
Republic  on  October  9,  1899.  This  document  made  various 
demands  on  Great  Britain,  and  added  that  if  they  were  not 
complied  with  before  five  o'clock  in  the  afternoon  of  October 
11,  war  would  be  held  to  have  broken  out  between  the  two 
powers.  The  reply  was  a  stern  refusal  to  discuss  such  de- 
mands so  presented  ;  and  accordingly  the  Boer  War  dates 
from  the  time  indicated  in  the  ultimatum. 

The  reference  to  neutral  powers  in  the  second  article  of 
the  Convention  is  a  recognition  of  the  fact  that  their  interests, 
as  well  as  those  of  belligerents,  are  involved  in  the  substitu- 
tion of  a  state  of  war  for  a  state  of  peace.  When  the  change 
comes,  it  involves  both  neutral  governments  and  neutral  in- 
dividuals in  a  complex  of  new  obligations,  and  confers  on 
them  a  number  of  new  rights.  Obviously  it  is  most  impor- 
tant that  they  should  know  the  exact  time  when  the  altera- 
tion in  their  legal  position  takes  effect.  The  parties  to  the 
struggle  are,  therefore,  bound  to  send  them  without  delay 
notification  of  the  outbreak  of  war,  a  message  by  telegraph 
being  deemed  sufficient.  Without  such  notification  belliger- 
ents cannot  enforce  their  rights  against  neutrals,  unless  they 
are  able  to  show  that  the  requisite  knowledge  has  been  ac- 
quired in  some  other  way.  With  modern  means  of  com- 
munication a  war  is  not  a  thing  that  can  be  kept  concealed. 


AND   OTHER   PRELIMINARY   POINTS  351 

Its  existence  would  be  known  all  over  the  world  in  a  very 
short  time.  But  nevertheless  the  rule  that  neutrals  are  not 
liable  for  breach  of  neutrality  till  knowledge  of  the  outbreak 
of  war  has  been  brought  home  to  them,  might  affect  the 
validity  of  captures  made  at  sea  in  the  first  outburst  of  a 
maritime  conflict.  In  addition  to  the  mere  notification  re- 
quired by  the  Convention,  belligerents  will  probably  con- 
tinue to  issue  the  manifestoes  it  has  long  been  customary  for 
them  to  publish  in  their  own  territories,  as  a  warning  to 
their  subjects  and  a  justification  of  themselves  before  the 
world.  And  doubtless  copies  of  these  manifestoes  will  be 
sent,  as  heretofore,  to  neutral  governments.  Before  leaving 
the  subject  we  may  remark  that  the  Hague  Conference  of 
1907  seems  to  have  provided  for  all  questions  that  may  arise 
in  connection  with  the  outbreak  of  hostilities  except  one. 
To  this  we  referred  at  the  end  of  the  previous  section.  No 
formal  notice  is  required  of  a  resort  to  reprisals,  and  it  will 
be  remembered  that  they  differ  from  war  rather  in  the  intent 
of  the  parties  and  the  legal  consequences  of  the  operations 
that  take  place  than  in  the  nature  of  the  acts  themselves. 
How  then  are  we  to  prevent  a  strong  state  from  making  a 
sudden  and  unnotified  attack  on  a  weak  neighbor  under  the 
guise  of  reprisals  ?  Clearly  by  legislating  on  the  subject  at 
the  next  Hague  Conference.  As  to  the  nature  of  the  legis- 
lation, the  suggestion  of  Professor  Westlake  holds  the  field, 
with  its  happy  enlargement  of  the  province  of  arbitration  and 
judicious  development  of  ideas  already  sanctioned  by  the 
Conference  of  1907. 


Every  independent  state  decides  for  itself  whether  it  shall 
make  war  or  remain  at  peace.     If  it  resorts  to  hostilities  it 
obtains  as  a  matter  of  course  all  the  rights  of  The  meaning 
a  belligerent.     Other  states  have  no  power  to  J^JS*  *f 
give  or  to  withhold  them.     But  the  case  is  very  belligerency. 
different  with  regard  to  such  communities  as  are  not  already 
states  in  the  eye  of  International  Law,  though  they  are  striv- 


352  THE   DEFINITION   OF   WAR 

ing  to  become  independent,  and  to  have  their  independence 
recognized  by  other  powers.1  Technically  they  form  por- 
tions of  old-established  states.  Practically  each  is  in  revolt 
against  the  state  organization  to  which  it  belongs  in  law, 
and  is  endeavoring  to  set  up  a  separate  state  organization 
for  itself  or  to  gain  control  of  the  existing  organization. 
By  the  municipal  law  of  the  country  of  which  the  community 
is  still  legally  a  part  its  members  are  traitors  and  liable  to 
punishment  as  such.  Yet  they  are  carrying  on  open  war  under 
the  orders  of  authorities  analogous  to  those  of  recognized 
states.  How  then  are  they  to  be  treated?  International 
Law  gives  no  answer  to  this  question  as  far  as  the  govern- 
ment against  which  they  are  in  revolt  is  concerned.  Ques- 
tions between  it  and  its  rebels  are  domestic  questions  to  be 
resolved  by  internal  authority.  In  modern  times  when  civil 
strife  reaches  the  dimensions  of  a  war  the  parent  state  in- 
variably treats  the  insurgents  as  belligerents,  partly  from 
motives  of  humanity  and  partly  because  it  does  not  care  to 
expose  its  own  forces  to  military  reprisals.  An  instance  of 
this  on  a  large  scale  is  afforded  by  the  events  of  the  Ameri- 
can Civil  War.  The  Supreme  Court  decided  in  the  case  of 
the  Amy  Warwick*  that  the  Confederates  were  at  the  same 
time  belligerents  and  traitors,  and  subject  to  the  liabilities 
of  both.  In  practice,  however,  they  were  treated  as  bel- 
ligerents throughout  the  struggle.  But  if  third  parties  are 
affected  by  the  war,  International  Law  steps  in  and  gives 
them  rules  by  which  to  govern  their  conduct  towards  the  com- 
batants. It  lays  down  that  they  may  under  certain  circum- 
stances grant  to  the  side  in  arms  against  the  parent  state 
all  the  rights  of  lawful  belligerents.  The  notice  of  their  in- 
tention to  do  this  is  called  recognition  of  belligerency.  It 
must  be  publicly  given,  either  in  words,  or  by  the  perform- 
ance of  acts  peculiar  to  the  relation  between  a  neutral  and  a 
belligerent  community.  It  does  not  confer  upon  the  com- 

1  See  §  46. 

2  Black,  Reports  of  the  U.  S.  Supreme  Court,  vol.  II,  p.  635. 


AND   OTHER   PRELIMINARY   POINTS  353 

munity  recognized  all  the  rights  of  an  independent  state  ; 
but  it  grants  to  its  government  and  subjects  the  rights  and 
imposes  upon  them  the  obligations  of  an  independent  state 
in  all  matters  relating  to  the  war.  It  follows  from  this  that 
the  powers  that  give  such  recognition  are  bound  to  sub- 
mit to  lawful  captures  of  their  merchantmen  made  by  the 
cruisers  of  the  community  recognized,  or  by  those  of  the 
mother  country.  They  must  also  respect  effective  blockades 
carried  on  by  either  side,  and  treat  the  officers  and  soldiers  of 
the  rebels  as  lawful  combatants,  no  less  than  the  officers  and 
soldiers  of  the  established  government. 

Since  recognition  of  belligerency  has  such  important  legal 
effects,  it  is  necessary  to  discuss  the  circumstances  in  which 
it  may  be  given  by  third  powers  without  offence  to  the 
parent  state.  Two  conditions  are  necessary.  The  struggle 
must  have  attained  the  dimensions  of  a  war,  as  wars  are  un- 
derstood by  civilized  states ;  and  the  interests  of  the  power 
that  recognizes  must  be  affected  by  it.  The  first  condition 
is  satisfied  when  the  revolted  community  is  seated  upon  a 
definite  territory,  over  which  an  organized  government  exer- 
cises control  except  in  so  far  as  parts  of  it  may  be  in  the 
military  occupation  of  the  enemy,  in  which  forces  are  levied 
and  organized,  and  from  which  they  are  sent  into  the  field 
to  combat  according  to  the  rules  of  civilized  warfare.  The 
second  condition  is  satisfied  when  there  are  so  many  points 
of  contact  between  the  subjects  of  the  recognizing  state 
and  the  warlike  operations,  that  it  is  necessary  for  it  to  de- 
termine how  it  will  treat  the  parties  to  the  struggle.  When 
an  insurrection  is  confined  to  a  district  in  the  interior  of  a 
country,  other  states  would  be  acting  in  an  unfriendly  man- 
ner if  they  recognized  the  belligerency  of  the  insurgents, 
because  by  the  nature  of  the  case  the  incidents  of  the  conflict 
could  not  directly  affect  their  subjects.  But  if  a  frontier 
province  rebelled,  it  would  be  difficult  for  the  neighboring 
power  or  powers  to  avoid  coming  to  a  decision  on  the  ques- 
tion whether  or  not  the  rebellion  amounted  to  a  war ;  and 

2A 


THE  DEFINITION   OF   WAR 

should  the  struggle  be  maritime,  states  interested  in  sea- 
borne commerce  could  hardly  refrain  from  recognition,  if 
the  area  of  hostilities  was  wide  and  the  interests  at  stake 
were  great  and  various.  The  status  of  cruisers,  the  legality  of 
blockades,  and  the  validity  of  captures  must  be  determined. 
What  is  lawful  treatment  of  neutral  merchantmen,  if  there 
is  a  war,  is  unauthorized  and  illegal  violence,  if  there  is  not ; 
and  inasmuch  as  recognition  of  belligerency  relieves  the 
parent  state  from  responsibility  for  the  acts  of  the  insurgent 
cruisers,  and  allows  it  to  treat  the  vessels  of  the  recognizing 
power  as  belligerents  treat  neutral  shipping,  it  is  almost 
as  much  benefited  by  the  act  as  are  the  people  in  revolt 
against  it.  All  these  points  were  thoroughly  discussed  in 
the  controversy  that  arose  between  Great  Britain  and  the 
United  States  with  regard  to  the  recognition  by  the  former 
of  the  belligerency  of  the  Southern  Confederacy  in  the 
spring  of  1861.  It  is  generally  admitted  now  that  the  con- 
duct of  the  British  Government  was  perfectly  lawful,  and 
the  recognition  neither  uncalled  for  nor  premature;  for 
great  commercial  interests  were  involved,  and  President 
Lincoln  had  proclaimed  a  blockade  of  the  Southern  ports 
three  weeks  before  Queen  Victoria's  proclamation  was 
issued.1 

§142 

In  modern  times  the  question  has  arisen  whether  recog- 
nition of  a  condition  midway  between  belligerency  and  mere 
Recognition  of  unauthorized  and  lawless  violence  might  not 
be  given  with  advantage.  Suppose,  for  instance, 
a  fleet  revolts  unsupported  by  any  province  or  port,  and  its 
vessels  carry  on  the  ordinary  operations  of  naval  warfare 
without  making  the  slightest  attempt  to  hoist  the  black  flag 
and  depredate  on  the  sea-borne  commerce  of  the  world. 
They  cannot  be  looked  on  as  regular  belligerents,  because 
belligerency  and  territory  are  inseparably  connected.  Nor 
1  Moore,  International  Law  Digest,  vol.  I,  pp.  184-193. 


AND   OTHER   PRELIMINARY   POINTS  355 

ought  they,  on  the  other  hand,  to  be  classed  as  denationalized 
rovers  of  the  seas,  liable  to  be  attacked  and  destroyed  by  the 
warships  of  any  state,  for  their  operations  have  a  political 
object,  and  are  limited  to  hostilities  against  the  government 
they  are  seeking  to  overthrow.  Recognition  of  independence 
is  out  of  the  question.  Recognition  of  belligerency  cannot 
be  granted  without  giving  them  the  right  to  subject  the 
merchantmen  of  the  grantor  to  all  the  severities  that  states 
at  war  may  inflict  on  neutral  vessels.  Common  sense  and 
humanity  condemn  the  idea  of  treating  them  as  pirates. 
The  only  course  remaining  is  to  interfere  in  no  respect  with 
the  struggle  between  them  and  the  loyal  forces  of  their  own 
country,  as  long  as  they  refrain  from  injury  to  the  persons  or 
property  of  subjects  of  other  powers.  They  cannot  be  al- 
lowed to  exercise  the  right  of  search  on  board  quasi-neutral 
vessels,  or  to  blockade  against  them  the  ports  of  the  mother 
country,  or  to  capture  them  for  carrying  contraband  or  en- 
gaging in  unneutral  service.  Nor  may  they  bombard  those 
quarters  of  the  mother  country's  coast  towns  which  are 
largely  inhabited  by  subjects  of  other  powers  or  full  of 
property  belonging  to  such  persons.  In  all  other  respects 
their  operations  should  be  left  unrestrained,  and  regarded 
as  regular  warfare.  Such  cases  will  be  rare,  but  they  are  by 
no  means  unknown.  Two  of  considerable  importance  have 
arisen  in  recent  times.  In  1891  the  insurrection  of  the 
Chilian  Congressional  party  which  finally  overthrew  Presi- 
dent Balmaceda  began  with  a  revolt  of  the  fleet,  and 
some  little  time  elapsed  before  land  forces  and  provinces 
joined  in  the  movement.  And  in  1893  the  Brazilian  fleet 
revolted,  and  for  seven  months  occupied  the  inner  harbor 
of  Rio  de  Janeiro,  till  in  March,  1894,  it  surrendered  to  the 
government.  In  both  cases  foreign  states  showed  a  strong 
tendency  to  assign  to  the  insurgents  the  position  we  have 
just  indicated,  though  they  made  various  reservations  and 
exceptions  which  showed  that  their  governments  had  not 
clearly  thought  out  the  legal  consequences  of  the  principles 


356  THE   DEFINITION   OF   WAR 

they  had  adopted.1  The  fall  of  Balmaceda  in  Chile,  and  the 
triumph  of  the  republican  government  in  Brazil  put  an  end 
to  all  difficulties  at  the  moment.  And  the  subsequent  con- 
sideration of  these  and  other  cases  by  international  jurists 
has  created  a  strong  body  of  opinion  in  favor  of  such  a 
course  as  we  have  recommended  on  the  part  of  states  uncon- 
cerned with  the  dispute. 

The  principles  involved  are  by  no  means  confined  to 
cases  where  no  land  territory  has  joined  in  the  insurrec- 
tionary movement.  They  apply  as  well  to  all  revolts  and 
civil  wars  in  which  the  insurgents  cannot  well  be  recognized 
as  belligerents  because  of  their  comparative  unimportance, 
or  their  deficiency  in  organization  and  resources,  or  their 
lack  of  points  of  contact  with  the  outside  world.  But  since 
they  are  carrying  on  political  objects  by  means  known  to 
the  laws  of  war,  they  cannot  be  regarded  as  outlaws  by 
foreign  powers,  however  much  it  may  please  the  authorities 
against  whom,  they  are  acting  to  describe  them  as  such.  In 
modern  times  civilized  states  have  found  in  practice  a  place 
for  them  distinct  from  those  accorded  to  bandits  and  pirates 
on  the  one  hand  and  regular  belligerents  on  the  other. 
This  position  is  now  beginning  to  be  legally  defined  as  we  have 
endeavored  to  define  it.  It  has  been  called  insurgency, 
and  matters  would  be  simplified  if  the  official  acknowledg- 
ment of  its  existence  were  called  recognition  of  insurgency.2 

§143 

The  outbreak  of  the  war  brings  about  ipso  facto  an  im- 
portant change  in  the  legal  relations  of  the  subjects  of 
The  immediate  tne  belligerent  states.  Diplomatic  intercourse 
legal  effects  of  the  ceases,  if  it  had  not  come  to  an  end  before : 

outbreak  of  war. 

and  consuls  are  no  longer  permitted  to  perform 

1  Lawrence,  Recognition  of  Belligerency  considered  in  relation  to  Naval 
Warfare,  pp.  10-18,  a  paper  in  the  Journal  of  the  Royal  United  Service  In- 
stitution, January,  1897 ;  Moore,  International  Law  Digest,  vol.  I,  pp.  201- 
205,  vol.  II,  pp.  1107-1120. 

2  G.  G.  Wilson,  Insurgency,  pp.  13-17. 


AND    OTHER    PRELIMINARY   POINTS  357 

their  functions.  The  public  armed  forces  on  each  side  are 
at  once  endowed  with  the  right  to  carry  on  active  hostilities 
according  to  the  ordinary  rules  of  warfare  ;  and  the  rights 
of  private  individuals  with  regard  to  ordinary  intercourse 
with  subjects  of  the  hostile  state  are  immediately  curtailed. 
No  transactions  injurious  to  their  own  side  must  be  entered 
on  by  them.  They  must  give  no  aid  and  comfort  to  the 
enemy.  They  may  not  buy  public  funds  and  securities 
created  by  his  government  during  the  war.  It  is  treasonable 
for  them  to  send  him  intelligence  about  the  plans  and 
operations  of  their  own  side.  To  a  very  considerable  ex- 
tent, therefore,  the  subjects  of  enemy  states  are  enemies, 
though  numerous  mitigations  have  blunted  the  severity  of 
the  old  doctrine  that  the  outbreak  of  war  authorizes  indis- 
criminate violence  between  all  members  of  the  hostile  nations. 
Non-combatants  are  exempt  from  most  of  the  severities  of 
warfare;  but  they  are  not  free  to  act  as  if  no  war  existed. 

With  regard  to  commercial  intercourse  there  are  two 
views.  The  older  was  set  forth  by  Sir  William  Scott  in  the 
case  of  the  Hoop.1  He  declared  it  to  be  "  an  universal  princi- 
ple of  law  "  that  "  all  trading  with  the  public  enemy,  unless 
with  the  permission  of  the  sovereign,  is  interdicted."  He 
then  drew  attention  to  the  fact  that  English  law  applied  with 
great  vigor  a  principle  that  was  to  be  found  in  the  law  of 
almost  every  country,  that  "  the  character  of  alien  enemy 
carries  with  it  a  disability  to  sue  or  to  sustain  in  the  language 
of  the  civilians  a  persona  standi  in  judicio."  From  this  he 
obtained  a  further  argument  in  favor  of  the  proposition 
that  commerce  with  enemy  subjects  is  illegal;  for  "if  the 
parties  who  are  to  contract  have  no  right  to  compel  the  per- 
formance of  the  contract,  nor  even  to  appear  in  a  court  of 
justice  for  that  purpose,  can  there  be  a  stronger  proof  that 
the  law  imposes  a  legal  inability  to  contract  ?  "  This  view 
was  adopted  and  enforced  by  the  courts  of  the  United  States, 
and  seems  to  have  been  held  pretty  generally  on  the  conti- 
1  C.  Robinson,  Admiralty  Reports,  vol.  I,  pp.  196-220. 


358  THE   DEFINITION   OF   WAR 

nent  of  Europe  for  a  long  time.  According  to  Despagnet l  it 
was  enforced  by  France  as  late  as  1870  ;  but  by  that  time  a 
newer  and  less  severe  doctrine  had  obtained  a  considerable 
hold  on  the  opinion  of  jurists,  especially  in  Germany.2 
Briefly  stated,  it  laid  down  that,  since  war  no  longer  placed 
the  general  population  of  the  opposing  nations  in  a  condition 
of  active  hostility,  commercial  intercourse  should  be  allowed 
to  go  on  between  them  except  in  so  far  as  the  necessities  of 
national  defence  justified  its  suspension.  This  view  achieved 
a  notable  triumph  at  the  Hague  Conference  of  1907,  when 
Germany  succeeded  in  carrying  an  addition  to  the  prohibi- 
tions of  Article  XXIII  of  the  Regulations  respecting  the 
Laws  and  Customs  of  War  on  Land.  It  is  cited  as  section 
(h),  and  runs  as  follows  in  the  authoritative  French  version, 
"  De  declarer  Steints,  suspendus,  ou  non  recevables  en  justice, 
les  droits  et  actions  des  nationaux  de  la partie  adverse"  The 
translation  adopted  by  the  British  Foreign  Office  in  the  Blue 
Book,  issued  in  July,  1908,  renders  the  section  in  English  as 
"  To  declare  abolished,  suspended,  or  inadmissible  the  right 
of  the  subjects  of  the  hostile  party  to  institute  legal  proceed- 
ings."3 Other  versions  are  given  elsewhere;4  Professor 
Holland  hazards  the  suggestion,5  which  he  does  not  adopt  for 
himself,  that  the  words  may  have  been  meant  merely  for  the 
guidance  of  an  invading  commander ;  and  this  view  is  taken 
by  the  British  government  and  by  General  G.  B.  Davis,  one 
of  the  American  plenipotentiaries.6  There  can  be  little 
doubt,  however,  that  they  were  intended  to  have  a  different 
and  far  wider  application.  They  were  adopted  by  the 
full  Conference  practically  without  discussion.  But  at  the 
meeting  of  an  important  sub-committee,  held  on  July  3, 

1Droit  International  Public,  2d  ed.,  p.  556. 
2  See  Westlake,  International  Law,  part  II,  p.  45. 
8  British  Parliamentary  Papers,  Miscellaneous,  No.  6  (1908),  p.  65. 
4  Ibid.,  No.  1  (1908),  p.  86;    Supplement  to  the  American  Journal  of 
International  Law,  vol.  II,  p.  107. 
6  Laws  of  War  on  Land,  p.  44. 

6  Pamphlet  by  Professor  Oppenheim  on   The  Interpretation   of  Article 
(h)  ;  American  Journal  of  International  Law,  vol.  II,  p.  70. 


AND   OTHER    PRELIMINARY   POINTS  359 

1907,  the  chairman  asked  for  an  explanation  of  them 
from  M.  Goppert,  the  able  German  jurist  who  was  one  of 
the  representatives  of  his  country  on  the  body  in  question. 
In  reply  he  was  told  that  their  object  was  to  prohibit  such 
laws  on  the  part  of  a  belligerent  as  would  prevent  an  enemy 
subject  from  obtaining  his  ordinary  remedies  for  breach  of 
contractual  obligation  from  the  tribunals  of  the  other  side  in 
time  of  war.1  That  is  to  say,  they  reversed  the  old  rule  that 
denied  to  an  enemy  subject  the  right  to  appear  in  a  court  of 
his  country's  foe  while  the  war  was  in  progress.  By  so  doing 
they  rendered  untenable  the  doctrine  held  by  so  many  powers, 
including  Great  Britain  and  the  United  States,  that  the  out- 
break of  war  put  a  stop  to  all  commercial  intercourse  with 
the  enemy,  except  what  is  specially  authorized  by  the  supreme 
power  in  the  state,  and  substituted  for  it  the  newer  view  that 
trade  is  allowed  except  in  so  far  as  it  is  expressly  prohibited 
as  dangerous  to  the  public  interests  during  the  war.  .  It  may 
be  doubted  whether  the  Conference  realized  the  magnitude 
of  the  change  it  made.  Both  of  the  two  great  English-speak- 
ing powers  have  signed  and  ratified  the  Convention  concern- 
ing the  Laws  and  Customs  of  War  on  Land,  and  accepted 
the  Regulations  which  accompany  it.  But,  if  the  view 
here  taken  is  correct,  it  will  be  necessary  for  them  to  legis- 
late in  order  to  carry  out  the  obligations  they  have  assumed 
by  assenting  to  the  German  proposition.  A  mass  of  legal 
technicalities  and  time-honored  distinctions  2  must  be  swept 
away.  It  is  possible  to  believe  that  the  new  rule  with  all 
that  is  involved  in  it  will  be  both  simpler  and  better  than 
the  old,  and  yet  to  regret  that  such  a  far-reaching  change 
was  made  with  so  little  discussion,3  and  such  an  absence  of 

1  Report  of  the  First  Sitting  of  the  First  Sub-Committee  of  the  Second 
Committee,  p.  3.     See  also  German  White  Book,  Dec.  6,  1907,  p.  7.     An 
illuminating  discussion  of  the  whole  matter  will  be  found  in  Higgins,  The 
Hague  Peace  Conferences,  pp.  263-265. 

2  Westlake,  International  Law,  vol.  I,  pp.  46-57  ;  Latifi,  Effects  of  War  on 
Property,  pp.  50-58. 

3  Deuxieme  Conference  Internationale  de  la  Paix,  Actes  et  Documents, 
vol.  IU,  p.  14. 


360  THE   DEFINITION   OF   WAR 

clear  and  definite  provision  for  the  many  exceptions  rendered 
necessary  in  order  to  insure  the  safety  of  the  state. 

§144 

We  are  faced  by  a  number  of  difficult  and  complicated 

questions  when  we  come  to  consider  the  effect  of  war  upon 

treaties  to  which  the  belligerents  are  parties. 

The  effect  of  war 

on  treaties  to          The  only  way  in  which  it  is  possible  to  deal 

which  the  belliger-  .    .  .,       .  . ,       , 

ents  and  other        with  them  satisfactorily  is  to  adopt  the  method 

powers  are  parties.    of  analysig  .    an<l  even  SO  W6  shall  have  tO  COnfeSS 

that  with  regard  to  some  cases  agreement  is  by  no  means 
general  or  practice  uniform.  We  will  begin  by  separating 
treaties  to  which  other  powers  besides  the  belligerents  are 
parties  from  treaties  to  which  the  belligerents  only  are  par- 
ties. The  first  class  will  at  once  divide  into  great  inter- 
national treaties  and  ordinary  treaties.  The  latter  provide 
for  the  everyday  business  of  international  intercourse,  while 
the  former  make  epochs  in  the  development  of  the  state 
system  and  territorial  distribution  of  parts  of  the  civilized 
world,  or  take  a  wider  range  and  legislate  for  the  society  of 
nations,  dealing  with  questions  that  affect  the  condition  of 
a  large  portion  of  the  human  race. 

In  estimating  the  effect  of  war  upon  great  international 
treaties  we  must  distinguish  four  cases.  The  first  arises 
when  the  cause  of  the  war  is  quite  unconnected  with  the 
treaty.  Thus  in  1866  Prussia  and  Austria,  two  signatory 
powers  of  the  great  Treaty  of  Paris  of  1856  which  for  a  time 
settled  the  Eastern  question,  were  the  chief  belligerents  in 
a  conflict  which  arose  out  of  German  affairs  and  had  no  con- 
nection with  the  Turkish  Empire  and  its  dependencies.  The 
Treaty  of  Paris  was  entirely  untouched  by  that  war,  and 
the  rights  and  obligations  of  Austria  and  Prussia  under  it 
remained  what  they  were  before.  In  such  circumstances 
a  great  international  treaty  is  unaffected  by  the  war.  The 
second  case  occurs  when  the  war  does  not  arise  out  of  the 
treaty,  but  operates  to  hinder  the  performance  of  some  of 


AND   OTHER   PRELIMINARY   POINTS  361 

its  stipulations  by  the  belligerents.  France,  for  instance, 
when  in  1870  she  was  reeling  under  the  blows  of  Germany, 
would  not  have  been  able  to  make  good  the  guarantee  of 
the  independence  and  integrity  of  the  Ottoman  Empire  into 
which  she  had  entered  with  England  and  Austria  in  1856. 
In  such  a  condition  of  affairs  the  obligations  it  is  impossible 
to  fulfil  must  be  held  to  be  suspended  for  a  time  and  to 
revive  again  when  the  power  in  question  is  able  to  undertake 
them.  If  there  are  other  provisions  of  the  treaty,  which  re- 
quire merely  passive  acquiescence  and  not  active  support, 
they  continue  to  bind  the  crippled  state,  and  the  whole  treaty 
remains  binding  on  the  other  signatory  powers,  especially 
when  it  is  directed  to  purely  humanitarian  ends,  such  as  the 
Final  Act  of  the  Brussels  Conference  of  1890  for  the  sup- 
pression of  the  African  slave  trade.  The  third  case  occurs 
when  the  war  arises  out  of  the  treaty.  This  happened  in 
1877,  when  Russia  and  Turkey,  two  of  the  parties  to  the 
Treaty  of  Paris  of  1856,  went  to  war  upon  the  Eastern 
question.  It  is  very  difficult  to  say  what  are  the  legal  effects 
of  such  action.  The  chief  factor  in  determining  them  must 
be  the  will  of  the  other  signatory  powers.  In  1877-1878 
they  remained  neutral  during  the  war,  but  at  its  close  put  in 
a  successful  claim  to  be  consulted  in  drawing  up  the  condi- 
tions of  peace,  on  the  ground  that,  having  allowed  the  state 
of  affairs  established  in  1856  to  be  upset,  they  were  entitled 
to  a  voice  in  shaping  the  new  arrangements  which  were  to 
take  its  place.  If  they  had  chosen  instead  to  adopt  the 
course  of  insisting  upon  the  Treaty  of  Paris  and  making  war 
against  any  power  that  infringed  it,  they  would  no  doubt 
have  been  within  their  technical  right.  Or,  if  the  disagree- 
ment between  the  belligerents  had  related  to  a  small  and  un- 
important point  in  the  treaty,  they  might  have  been  allowed 
to  settle  their  quarrel  without  interference,  on  the  under- 
standing that  the  other  stipulations  remained  in  force  unaf- 
fected by  the  war.  In  the  fourth  place  the  great  law-making 
treaties  must  be  considered.  Their  regulations  contemplate 


362  THE   DEFINITION  OF   WAR 

international  society  as  a  whole,  and  are  therefore  unaffected 
by  war  between  two  or  more  of  its  members,  except  in  the 
numerous  cases  when  they  deal  with  the  laws  of  war,  and 
then  they  are  brought  into  operation  by  the  conflict. 

Ordinary  treaties  to  which  one  or  more  powers  besides  the 
belligerents  are  parties,  are  affected  by  the  war  according  to 
their  subject-matter.  Thus  an  alliance  between  three  states 
would  be  destroyed  altogether  if  war  broke  out  between  two 
of  them;  a  treaty  of  commerce  would  cease  to  operate  be- 
tween the  belligerents,  but  would  probably  remain  in  force 
between  each  of  them  and  the  other  states  who  were  parties 
to  it ;  and  a  convention  with  regard  to  maritime  capture 
would  come  into  operation  between  the  belligerents,  and  be- 
tween each  of  them  and  the  neutral  signatory  powers. 

§145 

We  have  now  to  deal  with  treaties  to  which  the  belliger- 
ents only  are  parties.  Considered  with  reference  to  the 
The  effect  of  war  e^ect  of  war  upon  them,  they  fall  into  four 
on  treaties  to  classes.  In  the  first  we  may  put  those  to  which 

which  the  belliger-  .  . 

ents  only  are  the  ambiguous  name  of  pacta  transitona  has 
been  given.  This  phrase  does  not  refer  to  en- 
gagements the  force  of  which  passes  away  in  a  short  space  of 
time,  such  as  an  agreement  to  send  a  joint  punitive  expedition 
against  some  savage  tribe,  but  to  treaties  which,  though  they 
may  be  fulfilled  by  one  act  or  series  of  acts,  set  up  a  perma- 
nent state  of  things.  Boundary  conventions  and  treaties  of 
cession  or  recognition  are  examples.  War  has  no  effect  upon 
them.  They  remain  unchanged  in  spite  of  it.  For  example, 
the  boundaries  between  belligerent  states  may  be  readjusted 
in  consequence  of  a  war;  but  till  the  readjustment  is  effected 
by  the  treaty  of  peace  or  by  completed  conquest,  the  old 
territorial  distribution  remains  legally  in  force.  The  next 
class  is  made  up  of  treaties  of  alliance,  and  conventions  bind- 
ing generally  to  friendship  and  amity.  It  is  clear  that  they 
are  entirely  destroyed  by  the  war.  In  the  third  class  we 


AND   OTHER   PRELIMINARY  POINTS  363 

may  place  conventions  for  regulating  ordinary  social,  politi- 
cal, and  commercial  intercourse,  such  as  treaties  of  com- 
merce and  extradition  treaties.  The  effect  of  war  upon 
instruments  of  this  kind  is  very  doubtful.  They  are,  of 
course,  suspended  while  the  war  lasts  ;  but  it  is  a  much-dis- 
puted question  whether  they  revive  again  at  the  conclusion 
of  peace,  or  are  destroyed  by  the  war  and  require  to  be  ree'n- 
acted  if  they  are  to  come  into  force  again  when  it  is  over. 
The  practice  of  states  exhibits  a  lamentable  absence  of  uni- 
formity. Some  treaties  of  peace  expressly  stipulate  for  the 
revival  of  postal  and  commercial  agreements  subsisting  be- 
fore the  war,  the  inference  being  that  the  stipulation  was 
necessary  to  give  force  to  the  revived  arrangements.  Other 
treaties  contain  no  covenant  for  revival,  and  yet  under  such 
circumstances  agreements  of  the  kind  we  are  considering 
have  been  acted  upon  after  the  peace  on  the  understanding 
that  they  were  restored  to  efficiency  by  it.1  In  judicial  de- 
cisions we  find  a  nearer  approach  to  a  fixed  rule.  The 
Supreme  Court  of  the  United  States  laid  down  in  the  case  of 
the  Society  for  the  Propagation  of  the  Gospel  v.  the  Town 
of  New  Haven 2  that  the  stipulations  regarding  confiscations 
and  alienage  in  the  treaties  of  1783  and  1794  between  the 
United  States  and  Great  Britain  were  of  a  permanent  char- 
acter, and  were  not,  therefore,  abrogated  by  the  War  of 
1812,  though  their  enforcement  was  suspended  while  it 
lasted.  And  in  England  in  1830  the  Master  of  the  Rolls 
decided  in  the  case  of  Sutton  v.  Sutton  3  in  favor  of  the  per- 
manency of  the  Treaty  of  1794  which  gave  to  citizens  of  each 
country  and  their  heirs  and  assigns  the  right  to  hold  land  in 
the  other.  With  these  facts  before  us  we  may  venture  to 
say  that,  though  no  rule  can  be  laid  down  as  undoubted  law, 
it  is  best  to  hold  on  general  principles  that  treaties  of  the 
kind  we  are  now  considering  are  merely  suspended  by  war 

1  Hall,  International  Law,  5th  ed.,  pp.  386,  387. 

2  Wheaton,  Reports  of  U.  S.  Supreme  Court,  vol.  VIH,  p.  494. 
8  Russell  and  Mylne,  Chancery  Reports,  vol.  I,  p.  663. 


364  THE  DEFINITION   OF   WAR 

and  revive  at  the  conclusion  of  peace,  unless  the  parties 
expressly  annul  them  or  substitute  other  arrangements  for 
them.  The  fourth  and  last  class  contains  treaties  which 
regulate  the  conduct  of  the  contracting  parties  towards  each 
other  when  they  are  belligerents,  or  when  one  is  a  belligerent 
and  the  other  is  neutral.  Cases  in  point  are  afforded  by  the 
numerous  agreements  giving  to  the  subjects  of  each  of  the 
contracting  powers  the  right  to  remain  in  the  territory  of  the 
other  should  the  two  countries  be  at  war,  and  by  stipula- 
tions for  the  regulation  of  maritime  capture.  The  effect  of 
war  on  all  treaties  of  this  class  is  to  bring  them  into  active 
operation. 

What  we  have  said  above  applies  not  only  to  whole  treaties, 
but  also  to  separate  stipulations  in  treaties  dealing  with  sev- 
eral subjects.  With  the  aid  of  the  table  printed  on  the  next 
page  it  is  hoped  that  the  careful  reader  will  be  able  to  see 
his  way  through  this  intricate  subject.  The  sweeping  state- 
ments to  be  found  in  diplomatic  correspondence  concerning 
the  effect  of  war  on  treaties  may  be  passed  over  with  little 
respect.  They  are  generally  made  in  support  of  a  foregone 
conclusion.  The  method  of  observation,  analysis,  and  classi- 
fication is  the  only  one  capable  of  yielding  fruitful  results. 


AND   OTHEK   PRELIMINARY   POINTS 


365 


§  146 


TABLE  SHOWING  THE  EFFECT  OF  WAR  ON  TREATIES  TO  WHICH 
THE  BELLIGERENTS  ARE  PARTIES 


I.  Treaties 
to  which  other 
powers  be- 
sides the  bel- 
ligerents are 
parties. 


H.  Treaties 
to  which  the 
belligerents 
only  are  par- 
ties. 


(A)  Great 
international 
treaties. 


(a)  When  the  war  is 
quite  unconnected  with 
the  treaty. 

(&)  When  the  war 
does  not  arise  out  of  the 
treaty,  but  prevents  the 
performance  of  some  of 
its  stipulations  by  the 
belligerents. 

(c)  When  the  war 
arises  out  of  the  treaty. 


(d)  When  the  treaty  is 
a  law-making  treaty. 


Unaffected. 


Unaffected  as  re- 
gards the  other  stipu- 
lations, and  entirely 
unaffected  with  re- 
gard to  neutral  sig- 
natory powers. 

Effect  doubtful, 
depending  chiefly  on 
will  of  neutral  signa- 
tory powers. 

Either  unaffected, 
or  brought  into  oper- 
ation, by  the  war. 


(B)  Ordinary  treaties  to 
which  one  or  more  powers  be- 
sides the  belligerents  are  par- 
ties. 


(a)  Pacta  transitoria. 
(6)  Treaties  of  alliance. 

(c)  Treaties  for   regulating 
ordinary  social  and  commer- 
cial intercourse,  such  as  postal 
and  commercial  treaties,  con- 
ventions about  property,  etc. 

(d)  Treaties  regulating  the 
conduct  of  signatory  powers 
towards  each  other  as  bellig- 
erents, or  as  belligerent  and 
neutral. 


Effect  depends  upon  subject- 
matter.  Generally  suspended 
or  abrogated  with  regard  to 
belligerents;  unaffected  with 
regard  to  third  parties. 

Unaffected. 
Abrogated. 

Effect  doubtful.  Generally 
the  treaty  of  peace  deals  with 
such  matters ;  if  not,  it  is  best 
to  take  the  stipulations  as 
merely  suspended  during  war. 

Brought  into  operation  by 
war. 


CHAPTER   II 

THE  ACQUISITION    BY  PERSONS   AND   PROPERTY   OP    ENEMY 

CHARACTER 

§  147 

ENEMY  character  is  a  quality  possessed  in  a  greater  or  less 
measure  by  persons  and  things.  It  is  by  no  means  constant; 
Enemy  character,  but  may  be  likened  to  a  taint  which  in  some 
which" indwduife  cases  is  powerful,  in  others  weak,  and  may  be 
possess  it.  of  any  degree  of  strength  between  the  two  ex- 

tremes. Some  persons  are  enemies  in  the  fullest  sense  of 
the  word  ;  that  is  to  say  they  may  be  killed  by  the  public 
armed  forces  of  the  state.  Others  are  enemies  only  in  the 
sense  that  a  certain  limited  portion  of  their  property  may  be 
subjected  to  the  severities  of  warfare.  And  it  is  the  same 
with  things.  Sometimes  they  are  enemy  property  in  the 
sense  that  they  may  be  captured  wherever  it  is  lawful  to 
carry  on  hostilities:  sometimes  they  may  be  taken  only 
under  very  special  circumstances.  We  will  endeavor  to 
arrange  both  enemy  persons  and  enemy  property  in  an 
ascending  and  descending  scale,  according  to  the  degree 
in  which  the  hostile  character  is  impressed  upon  them. 

§  148 

First  among  those  individuals  who  may  be  regarded  as 
enemies  we  must  place 

Persons  found  in  the  military  or  naval  service  of  the  enemy  state. 

Thene  arc  enemies  to  the  fullest  extent.  Tliey  may  ho 
killed  or  wounded  in  fair  fight  according  to  the  laws  of  war, 

366 


THE   ACQUISITION   BY   PERSONS    AND   PROPERTY       367 

and,  if  captured,  may  be  held  as  prisoners  of  war.  Their 
nationality  makes  no  difference  in  this  respect.  If  any  of 
them  are  neutral  subjects,  they  can  claim  no  T 

J  <*  Persons  enrolled  in 

immunities  on  that  account.  As  was  definitely  the  enemy's  fight- 
stated  in  the  fifth  Convention  of  the  last  Hague 
Conference,  they  are  free  from  special  severities,  but  subject 
to  the  ordinary  risks  and  incidents  of  civilized  warfare.1 
Enrolment  in  the  public  armed  forces  of  a  belligerent  puts 
them  as  regards  the  enemy  in  the  same  position  as  their 
comrades  who  are  subjects  of  the  state  for  which  they  are 
fighting.  Modern  warfare  provides  constant  illustrations 
of  this  rule,  especially  when  neutral  opinion  runs  strong  in 
favor  of  one  side  in  the  struggle.  For  instance,  in  the 
Boer  War  of  1899-1902  large  numbers  of  foreigners  joined 
the  forces  of  the  Dutch  republics,  and  were  treated  by  the 
British  as  lawful  combatants.  The  only  exception  to  this 
humane  custom  occurs  when  a  state  finds  subjects  of  its  own 
fighting  against  it  in  the  ranks  of  its  foes.  It  would  then 
have  the  right,  should  it  capture  them,  to  execute  them  as 
traitors,  instead  of  treating  them  as  prisoners  of  war. 

But  nevertheless  difficulties  may  arise  in  some  cases.  If  the 
enlistment  of  neutral  subjects  is  purely  voluntary,  the  bellig- 
erent who  suffers  from  it  may  complain  to  the  state  whence 
they  came.  The  question  of  the  responsibility  of  their  mother 
country  is  settled  by  the  law  of  neutrality,  and  will  be  discussed 
when  we  deal  with  that  portion  of  our  subject.  If  the  enlist- 
ment is  involuntary,  the  persons  compelled  to  serve  being 
foreigners  resident  in  the  territory  of  the  belligerent  that  ex- 
ercises compulsion  over  them,  their  government  would  have 
good  ground  of  complaint  should  the  force  into  which  they 
have  been  drafted  be  the  regular  army.  This  would  mean 
that  the  aliens  in  question  were  liable  to  be  used  for  the  politi- 
cal purposes  of  the  state  that  had  obtained  possession  of  their 

1  British  Parliamentary  Papers,  Miscellaneous,  No.  6  (1908),  p.  66  ;  Whit- 
tuck,  International  Documents,  p.  147 ;  Supplement  to  the  American  Journal 
of  International  Law,  vol.  II,  pp.  122,  123. 


368  THE  ACQUISITION   BY   PERSONS 

services.  The  question  whether  they  may  be  forcibly 
enrolled  in  the  militia  or  national  guard  is  not  so  clear. 
In  the  American  Civil  War  Great  Britain  seemed  content 
that  her  subjects  domiciled  in  the  United  States  should 
serve  in  the  local  militia,  and  in  one  case,  that  of  Scott,  she 
declined  to  interfere  with  an  order  to  join  the  active  army.1 
But  Scott  had  declared  his  intention  of  becoming  a  natural- 
ized American  subject,  and  of  adhering  to  the  United  States 
if  war  had  broken  out  at  the  time  of  the  Trent  affair ;  and 
probably  it  was  thought  that  a  citizen  whose  allegiance  sat 
so  lightly  upon  him  had  little  claim  for  consideration  from 
his  native  state.  Certain  it  is  that  a  vigorous  protest  was 
addressed  to  the  government  of  the  Southern  Confederacy 
against  its  practice  of  regarding  British  subjects  domiciled 
within  its  territory  as  liable  to  conscription.  Moreover,  one 
of  the  grievances  that  helped  to  bring  about  the  Boer  War 
was  the  habit  of  the  South  African  Republic  of  endeavor- 
ing to  "  commandeer  "  for  military  service  the  "  outlanders  " 
to  whom  it  denied  citizenship.  There  is  a  clear  distinction 
between  the  maintenance  of  social  order,  which  may  well  be 
required  of  every  one  who  lives  under  the  protection  of  the 
local  laws,  and  the  furtherance  of  political  ends,  which  ought 
to  be  asked  only  of  those  who  are  members  of  the  body 
politic.  The  recognition  of  this  principle  would  lead  in 
practice  to  the  rule  that  foreigners  resident  in  the  country 
might  be  required  to  serve  in  any  local  force  raised  for 
defending  life  and  property  against  the  enemies  of  society, 
but  could  not  be  compelled  to  serve  in  the  army  or  militia.2 
Any  state  might  without  offence  declare  that  it  would  insist 
upon  the  application  of  this  rule  to  its  subjects  domiciled 
abroad.  There  are,  in  fact,  various  treaties  in  existence 
whereby  the  contracting  powers  provide  that  their  subjects 
domiciled  in  each  other's  territory  shall  not  be  called  upon 
for  war-services.  The  Commercial  Treaty  of  1871  between 

1  Halleck,  International  Law,  Baker's  4th  ed.,  vol.  I,  p.  460,  note. 

2  Hall,  International  Law,  6th  ed.,  pp.  208,  209. 


AND  PROPERTY   OF   ENEMY   CHARACTER  369 

the  United  States  and  Italy  contains  stipulations  to  that 
effect,1  and,  among  the  leading  powers  of  Europe,  Great 
Britain,  France,  and  Russia  have  been  parties  to  such  agree- 
ments. It  is  hardly  possible  to  say  that  the  rule  in  question 
is  part  of  the  common  law  of  nations  ;  but  it  seems  in  a 
fair  way  to  become  so,  since  opinion  and  practice  are  turn- 
ing strongly  in  its  favor. 

§149 

The  next  class  of  enemies  is  composed  of 
Seamen  navigating   the   merchant  vessels  of  the   enemy  state. 
They  differ  from  ordinary  combatants  in  that  „ 

»  *  Crews  of  the  mer- 

they  may  not  attack  the  enemy  of  their  own  ini-  chant  vessels  of 
tiative,  and  from  ordinary  non-combatants  in 
that  they  may  fight  to  defend  their  vessel  if  it  is  attacked  by 
the  enemy.  They,  therefore,  occupy  a  position  midway  be- 
tween the  fighting  forces  and  the  civilian  population.  Till 
1907  they  might  be  held  as  prisoners  of  war  when  their  vessel 
was  captured,  no  matter  whether  they  offered  resistance 
or  made  a  quiet  surrender.  But  the  Hague  Conference  of 
that  year,  in  its  Convention  relative  to  certain  Restrictions 
on  the  Exercise  of  the  Right  of  Capture  in  Maritime  War, 
freed  them  from  liability  to  be  kept  in  captivity,  if  they 
would  make  a  formal  promise  in  writing  not  to  undertake 
during  the  war  any  service  connected  with  its  operations. 
Should  they  be  subjects  of  a  neutral  state,  they  must  be  set  at 
liberty  unconditionally,  except  that  officers  of  neutral  nation- 
ality are  required  to  promise  in  writing  not  to  serve  again 
on  an  enemy  ship  during  the  continuance  of  hostilities. 
These  immunities,  which  the  Japanese  largely  anticipated 
in  their  war  of  1904-1905  with  Russia,2  are  made  to  de- 
pend on  a  peaceful  delivery  of  the  vessel.  Under  modern 
conditions  of  warfare  resistance  would  in  the  vast  majority  of 

1  Treaties  of  the  United  States,  p.  582. 

2  Takahashi,  International  Law  Applied  to  the   Russo-Japanese   War, 
pp.  138,  139. 

2n 


370  THE  ACQUISITION  BY   PERSONS 

cases  amount  to  madness,  and  would,  therefore,  be  attempted 
very  rarely.  But  when  made,  it  would,  of  course,  deprive 
those  who  made  it  of  freedom  from  capture  as  prisoners  of 
war.1  Should  the  crew  of  a  belligerent  merchantman  make 
an  unprovoked  attack  on  a  vessel  of  the  enemy,  they  would 
be  liable  now,  as  of  old,  to  the  severities  exercised  against 
non-combatants  who  perform  hostile  acts. 

§  150 
Travelling  down  the  scale,  we  now  come  to 

Followers  of  an  army  such  as  contractors,  newspaper  corre- 
spondents, sutlers,  etc. 

There  are  numerous  persons  who,  in  the  words  of  Article 
XIII  of  the  Hague  Regulations  respecting  the  Laws  and 
Those  who  follow  Customs  of  War  on  Land,2  "follow  an  army 
an  army  without  without  directly  belonging  to  it."  The  Article 

directly  belonging  <f 

to  Jt-  goes  on  to  mention  "  newspaper  correspondents 

and  reporters,  sutlers  and  contractors,"  but  only  as  examples. 
It  makes  no  attempt  to  give  a  complete  list;  and  we  can 
see  at  once  that  many  classes  of  persons  besides  those  enum- 
erated come  within  the  terms  of  the  general  description. 
Members  of  a  royal  family  who  took  the  field  would  as 
a  rule  hold  military  rank ;  but  it  is  conceivable  that  a 
prince  who  had  never  entered  the  army  might  nevertheless 
accompany  it  in  the  crisis  of  a  campaign.  A  minister  of 
state,  too,  might  find  himself  on  a  battlefield,  though  in 
ordinary  life  he  was  the  most  peaceful  of  civilians.  All 
these  exalted  personages  would  be  following  the  army 
without  directly  belonging  to  it,  as  truly  as  the  meanest 

1  British  Parliamentary   Papers,   Miscellaneous,    No.  6(1908),   p.   98; 
Whittuck,  International  Documents,  185,  186 ;  Supplement  to  the  American 
Journal  of  International  Law,  vol.  II,   pp.  170,  171 ;    Higgins,  The  Hague 
Peace  Conferences,  pp.  397,  398. 

2  British  Parliamentary    Papers,   Micellaneous,    No.  6   (1908),   p.   53  } 
Whittuck,  International  Documents,  p.  132 ;  Supplement  to  the  American 
Journal  of  International  Law,  vol.  II,  p.  102  ;   Higgins,  The  Hague  Peace 
Conferences,  p.  227. 


AND   PROPERTY   OF   ENEMY   CHARACTER  371 

peddler  who  sold  fruit  and  sweetmeats  to  the  soldiers. 
They  would  therefore  be  liable  to  detention  if  they  fell  into 
the  enemy's  hands.  He  would  keep  them  or  free  them  at 
his  discretion.  But  Article  XIII  of  the  Hague  Regulations 
stipulates  that,  if  they  are  detained,  they  "are  entitled  to 
be  treated  as  prisoners  of  war,  provided  that  they  are  in 
possession  of  a  certificate  from  the  military  authorities  of 
the  army  they  were  accompanying."  This  last  proviso  was 
made  to  fit  the  case  of  such  persons  as  foreign  attaches  or 
newspaper  correspondents,  who  have  no  business  to  be  with 
an  army  at  all  unless  they  have  obtained  special  permission 
to  accompany  it.  It  is  hardly  applicable  to  prime  ministers 
or  petty  traders,  who  are  respectively  too  great  and  too 
humble  to  need  formal  certificates.  We  may  safely  say  that 
any  non-military  persons  who  are  detained  must  be  treated 
with  humanity,  and  those  of  them  who  cannot  be  regarded 
as  undesirables,  to  be  got  rid  of  as  soon  as  possible,  are  en- 
titled to  the  consideration  due  to  prisoners  of  war.1  • 


Another  class  possessing  the  enemy  character  in  some  de- 
gree is  composed  of 

Persons  living  in  an  enemy  country. 

But  though  they  must  be  reckoned  as  enemies,  they  are  not 
hostile  to  such  an  extent  that  they  may  be  slain,  or  even 
made  prisoners,  as  long  as  they  live  quietly  persons  living  in 
and  take  no  part  in  the  conflict,  direct  or  indi-  an  enemy  country' 
rect.  When  two  civilized  states  are  at  war,  the  residents  in 
the  territory  of  each  will  almost  invariably  include  a  consid- 
erable number  of  neutral  subjects,  and  sometimes  a  few  enemy 
subjects  as  well.  These  people  must  of  necessity  increase 
the  resources  of  the  country  by  the  taxes  they  pay,  and  the 
growth  of  wealth  due  to  any  trading  operations  they  may 

i  See  §  164 


372  THE  ACQUISITION   BY   PERSONS 

carry  on  successfully.  It  seems  to  follow  that  should  the  dis- 
trict they  live  in  be  invaded  by  the  other  belligerent,  he  is  at 
liberty  to  impose  on  them,  as  well  as  on  the  subjects  of  his 
enemy,  such  burdens  as  may  be  lawfully  exacted  from  districts 
under  military  occupation.  These  include  the  payment  of 
contributions  and  requisitions,  and  the  performance  of  certain 
personal  services,  but  exclude  plunder  and  personal  injury.1 

But  here  we  are  encountered  by  the  modern  doctrine  that 
nationality  rather  than  domicile  should  determine  personal 
status,  including  hostile  or  friendly  character  and  in  conse- 
quence liability  or  non-liability  to  the  severities  of  warfare. 
At  the  Hague  Conference  of  1907  Germany  attempted  to  in- 
troduce rules  founded  on  this  theory  into  the  Convention  on 
the  Rights  and  Duties  of  Neutrals  in  Land  Warfare.  She  de- 
sired to  exempt  neutral  subjects  resident  in  occupied  districts 
from  requisitions  and  other  exactions.  Belligerents  were  not 
to  accept  assistance  from  neutral  individuals  unless  it  was  hu- 
manitarian in  its  character,  and  neutral  governments  were  to 
forbid  their  subjects  to  render  prohibited  services.  The 
United  States  supported  the  German  propositions  ;  but  a 
strong  group  of  powers,  headed  by  Great  Britain,  France, 
Japan,  and  Russia  opposed  them  successfully.2  For  the  pres- 
ent, therefore,  the  old  doctrine  that  status  depends  on  domi- 
cile holds  good  as  far  as  military  occupation  is  concerned. 
It  has,  however,  to  struggle  for  existence  in  this  field  as  else- 
where. That  the  plenipotentiaries  assembled  at  The  Hague 
did  not  regard  its  results  as  altogether  satisfactory  may  be 
inferred  from  the  wish  expressed  unanimously  in  their  Final 
Act,  "  that  the  Powers  should  regulate,  by  special  treaties, 
the  position,  as  regards  military  charges,  of  foreigners  resid- 
ing within  their  territories."3 

1  See  §  180. 

2  Deuxieme  Conference  Internationale  de  la  Paix.    Actes  et  Documents, 
vol.  I,  pp.  148-159,  176-179. 

8  British   Parliamentary    Papers,    Miscellaneous,    No.   6   (1808),   p.   16 ; 
Whittuck,  International  Documents,  p.  88 ;   Supplement  to  the  American 


AND   PROPERTY   OF   ENEMY   CHARACTER  373 

Hitherto  we  have  considered  the  case  of  residents  in  the 
enemy's  territory  in  so  far  as  they  are  affected  by  war  on  land. 
We  must  now  deal  with  their  position  as  regards  war  at  sea. 
The  national  character  of  ships  is  determined  by  the  flag  they 
are  entitled  to  fly  ;  but  when  cargoes  are  seized  in  circum- 
stances that  justify  the  capture  of  enemy  property  yet  give 
no  right  to  confiscate  the  property  of  neutrals,  the  question 
immediately  arises  whether  the  owners  are  to  be  regarded  as 
enemies  if  they  reside  in  enemy  territory  or  as  neutrals  if 
in  addition  they  possess  neutral  nationality.  Should  they  be 
both  residents  on  enemy  soil  and  subjects  of  the  enemy  state,  no 
other  position  than  that  of  enemies  can  by  any  possibility  be 
assigned  to  them.  But  if  residence  points  in  one  direction 
and  national  character  in  another,  which  is  to  prevail  ?  The 
answer  of  the  school  of  thought  dominant  on  the  continent 
of  Europe  is  short  and  simple.  It  adheres  to  nationality 
as  the  test.  But  the  English-speaking  powers  have 
adopted  the  opposite  view.  British  and  American  judges 
have  laboriously  built  up  a  great  body  of  law,  based  upon 
the  proposition  that  such  a  residence  in  an  enemy's  country 
as  adds  the  resources  of  the  individual  to  the  common 
stock  of  strength  for  war  possessed  by  the  hostile  state, 
stamps  the  enemy  character  upon  him.  They  have  ap- 
plied the  principles  of  the  law  of  domicile  to  questions  of 
maritime  capture,  and  in  doing  so  have  modified  them  to 
some  extent  in  order  to  secure  substantial  justice  for  all  con- 
cerned. It  would  be  difficult  to  deny  that  they  have  suc- 
ceeded in  their  endeavor,  and  equally  difficult  to  maintain 
that  the  rules  they  have  elaborated  are  distinguished  by  the 
simplicity  that  characterizes  the  opposing  doctrine.  We 
shall  give  the  outline  of  their  system  a  little  further  on.1 
Here  it  will  be  sufficient  to  repeat  that  its  essence  is  the 
adoption  of  residence,  understood  in  a  special  sense,  as  the 
test  of  hostile  or  friendly  character. 

Journal  of  International  Law,  vol.  II,  p.  27;  Higgins,  The  Hague  Peact 
Conferences,  p.  69.  1  See  §  164. 


374  THE   ACQUISITION   BY   PERSONS 

The  conflict  between  the  two  views,  which  may  be  called 
for  shortness  the  British  and  the  Continental,  was  brought 
out  at  the  Naval  Conference  of  1908-1909.1  One  of  the 
matters  submitted  to  that  distinguished  body  of  representa- 
tives from  the  chief  maritime  states  of  the  world  was  this 
very  question  of  national  character.  It  was  agreed  on  all 
hands  that  vessels  were,  generally  speaking,  to  be  regarded 
as  belonging  to  the  country  whose  flag  they  were  entitled  to 
fly.  And  no  great  difficulty  was  experienced  in  reaching 
the  unanimous  conclusion  that  "  the  neutral  or  enemy  char- 
acter of  goods  found  on  board  an  enemy  vessel  is  determined 
by  the  neutral  or  enemy  character  of  the  owner."  2  But  the 
division  of  opinion  as  to  the  proper  method  of  determining 
the  character  of  the  owner  was  so  marked  and  persist- 
ent that  no  decision  was  possible.  The  matter  was  left 
open,  and  in  all  probability  it  will  be  settled  in  the  end  by 
the  proposed  International  Prize  Court.  A  compromise 
was  suggested  on  the  lines  of  the  adoption  of  nationality  as 
the  usual  test,  and  the  substitution  for  it  of  domicile  in  the 
exceptional  cases  when  the  owner  either  had  no  nationality 
or  was  of  double  nationality,  companies  to  be  considered  as 
enemy  or  neutral  according  to  the  locality  of  their  head- 
quarters. This  seems  reasonable;  but  it  failed  to  command 
unanimity,  and  had  to  be  abandoned  in  consequence.8 

§   152 

Our  next  class  of  enemies  is  tainted  with  the  hostile 
character  to  a  very  small  degree  only  according  to  the  theory 
of  domicile,  and  not  at  all  according  to  the  theory  of  nation- 
ality. It  consists  of 

Persons  living  in  places  held  by  the  enemy  merely  as  military 

occupant. 

1  See  §  32. 

2  British  Parliamentary  Papers,  Miscellaneous,  No.  4  (1909),  p.  88 ;  Sup- 
plement to  the  American  Journal  of  International  Law,  vol.  Ill,  p.  214. 

8  British  Parliamentary  Papers,  Miscellaneous,  No.  4  (1909),  pp.  61,  100. 


AND  PROPERTY   OF  ENEMY   CHARACTER  375 

These  a  state  may  regard  as  enemies  to  the  extent  of  sub- 
jecting to  hostile  capture  their  property  proceeding  from  the 
places  in  question,  even  though  they  are  parts  Residents  in 
of  its  own  territory.  Being  under  enemy  oc-  jX^^J^ 
cupation,  their  possession  enriches  the  enemy  tion  of  the  enemy, 
for  the  time  being  and  contributes  to  his  warlike  resources, 
while  their,  own  country  reaps  no  advantage  from  them. 
They  are,  therefore,  liable,  while  the  occupation  lasts,  to  the 
severities  exercised  in  war  against  the  property  of  non-com- 
batant subjects  of  the  enemy  state.  But  if  the  hostile  oc- 
cupants are  dispossessed,  the  inhabitants  are,  of  course, 
treated  as  citizens  and  not  as  residents  in  enemy  territory. 
During  the  Civil  War  in  the  United  States  the  courts  re- 
garded places  in  the  firm  possession  of  the  Southern  Con- 
federacy as  enemy  territory,  and  the  property  of  persons 
domiciled  therein  as  enemy  property  in  so  far  as  the  rules  of 
warlike  capture  were  concerned.1  But  it  should  be  remem- 
bered that  there  are  British  decisions  that  point  to  cession 
or  completed  conquest,  rather  than  mere  occupation  in  the 
military  sense,  as  necessary  before  the  territory  can  be  con- 
sidered hostile  to  such  an  extent  as  to  justify  the  capture 
and  condemnation  of  property  proceeding  from  it.2 

§153 

Lastly,  if  domicile  be  taken  as  the  test,  the  enemy  character 
is  possessed  in  an  appreciable  degree,  as  far  as  property  is 
concerned,  by 

Neutral  subjects  who  have  houses  of  trade  in  the  enemy's  country, 

though  they  do  not  reside  there. 

They  are  said  to  have  acquired  in  this  way  a  trade  domicile 
in  war  which  is  quite  independent  of  their  per-  Neutrals  who  have 
sonal  residence,  and  exposes  the  goods  connected  tCene^f  ^e  m 
with  it  to  the  risk  of  capture,  on  the  principle  country, 
that  the  enemy  country  has  its  resources  for  war  increased  by 

1  Wheaton,  International  Law  (Dana's  t'd.).  note  100. 

8  Westlake,  International  Law,  part  U,  pp.  145-147. 


376  THE  ACQUISITION   BY   PERSONS 

the  trade  done  in  it,  even  though  the  trader  himself  is  a  neutral 
subject  and  lives  in  neutral  territory.  The  result  was  tersely 
put  by  Lord  Stowell  in  the  case  of  the  Vigilantia,  when  he 
referred  with  approval  to  the  rule  "  that  if  a  person  entered 
into  a  house  of  trade  in  the  enemy's  country  in  time  of  war, 
or  continued  that  connection  during  the  war,  he  could  not 
protect  himself  by  mere  residence  in  a  neutral  country."1 
The  liability  to  capture  does  not,  however,  extend  to  other 
goods  belonging  to  the  same  owner  but  unconnected  with  the 
hostile  trading  establishment. 

§  154 

We  see  by  the  foregoing  list  of  those  who  are  technically 
enemies  that  citizenship  and  domicile  are  the  two  great  tests 
British  and  of  hostile  character,  but  that  other  circumstances, 

American  theory  .  ,  .,  , 

of  domicile  in  such  as  being  temporarily  or  permanently  in 
tions0onfb0eiHUger"ent  the  enemy's  service,  or  residing  in  a  district 
capture.  occupied  by  him,  or  having  a  house  of  trade  in 

his  country,  are  taken  into  consideration,  and  are  held  to  taint 
the  individual  concerned  to  a  greater  or  less  degree.  Ac- 
cording to  British  and  American  practice,  domicile  modifies 
to  a  great  extent  the  rules  based  on  nationality.  It  is 
necessary,  therefore,  *to  inquire  what  kind  of  residence 
amounts  in  law  to  domicile,  and  how  far  liability  to  the  sever- 
ities of  war  is  affected  thereby.  Fortunately  there  are  in 
existence  a  number  of  decisions  on  these  points  by  great 
prize  court  judges  both  in  England  and  in  the  United  States, 
and  we  are  able  to  gather  from  them  a  body  of  clear  and  con- 
sistent doctrine.  Domicile  is  determined  by  the  intent  of 
the  parties  and  by  the  length  of  their  residence.  If  the  in- 
tent to  go  to  a  certain  place  and  live  there  is  perfectly  clear, 
a  domicile  therein  is  acquired  as  soon  as  residence  commences. 
If  the  intent  is  not  clear,  long-continued  residence  will  create 
a  domicile;  and  an  intent  to  make  a  short  stay  in  a  place  and 

1  C.  Robinson,  Admiralty  Reports,  vol.  I,  p.  16, 


AND   PKOPERTY   OP   ENEMY  CHARACTER  377 

then  return  is  held  to  be  overridden  by  remaining  there 
a  long  time  and  treating  the  place  as  a  home.  In  every  case 
where  a  man  is  a  citizen  of  one  country  and  has  his  home  in 
another,  the  liability  of  his  property  connected  with  the 
latter  country  to  capture  and  other  incidents  of  warfare 
is  determined  by  domicile  and  not  by  nationality.  If  the 
country  of  his  domicile  be  neutral,  he  has  a  neutral  character 
in  so  far  as  his  property  connected  with  that  country  is  con- 
cerned; if  it  be  belligerent,  he  has  a  belligerent  character 
which  renders  his  property  connected  with  it  enemy  prop- 
erty to  the  other  belligerent.  But  any  property  which  he 
may  possess  in  the  country  of  his  citizenship  and  allegiance 
follows  the  condition  of  that  country  as  neutral  or  belligerent. 
And  further,  for  purposes  of  capture  at  sea  in  time  of  war,  a 
man  may  have  two  or  more  domiciles,  one  at  least  of  which 
is  unconnected  with  actual  residence ;  for  he  may  live  in  one 
country  and  have  a  house  of  trade,  or  a  share  as  partner  in  a 
house  of  trade,  in  another  country,  or  in  several  other  coun- 
tries. In  such  a  case  goods  connected  with  any  house  of 
trade  in  an  enemy  country  would  be  regarded  as  enemy 
goods,  and  held  liable  to  capture  in  circumstances  that 
justify  the  seizure  of  such  property. 

The  effect  of  intent  in  creating  a  domicile  of  choice  was 
stated  by  Lord  Camden  in  his  judgment  on  the  case  of  the 
non-Dutch  subjects  who  were  found  by  Admiral  Rodney  in 
the  island  of  St.  Eustatius  when  the  British  took  it  from  the 
Dutch  in  1781.  With  regard  to  those  who  meant  to  remain 
there,  he  laid  down  that  "  they  ought  to  be  considered  resi- 
dent subjects  "  of  the  republic  of  the  United  Netherlands; 
and  he  applied  this  rule  to  the  case  of  Mr.  Whitehill,  a  nat- 
ural-born British  subject,  who  had  arrived  in  the  island  only 
a  few  hours  before  the  British  fleet  attacked  it,  but  was 
shown  to  have  intended  to  take  up  his  permanent  residence 
therein.1  In  the  case  of  the  Harmony  the  influence  of  time 
upon  domicile  was  exhaustively  considered  in  a  judgment 
1  Wheaton,  International  Law,  §  321. 


378  THE  ACQUISITION   BY  PERSONS 

delivered  by  Lord  Stowell.  The  vessel  was  an  American  mer- 
chantman which  had  been  brought  in  for  adjudication  by  a 
British  cruiser  in  the  war  between  Great  Britain  and  France 
at  the  end  of  the  eighteenth  century,  on  the  ground  that  the 
cargo  consisted  of  enemy  goods.  The  partners  of  a  house  of 
trade  in  the  United  States  claimed  a  portion  of  it  as  belong- 
ing to  them,  and  therefore  neutral  property.  Restitution 
was  decreed  with  regard  to  the  share  of  the  partners  residing 
in  the  United  States  ;  but  in  1800  Lord  Stowell  decided 
against  another  partner,  Mr.  G.  W.  Murray,  on  the  ground 
that  he  was  residing  in  France,  the  country  of  the  enemy. 
Murray  had  travelled  from  the  United  States  to  France  to 
look  after  the  business  of  the  firm  in  that  country;  but  he 
had  remained  in  France  for  four  years  together,  and,  though 
it  was  clear  that  he  intended  to  return  to  America,  where  he 
had  a  wife  and  child,  there  was  also  evidence  to  show  that  he 
purposed  to  come  back  again  to  Europe.  Upon  these  facts 
Lord  Stowell  laid  down  that  "  a  special  purpose  may  lead  a 
man  to  a  country  where  it  shall  detain  him  the  whole  of  his 
life.  Against  such  a  long  residence  the  plea  of  an  original 
sp3cial  purpose  could  not  be  avowed."  He  continued, 
"  Supposing  a  man  comes  into  a  belligerent  country  at  or 
before  the  beginning  of  the  war,  it  is  certainly  reasonable 
not  to  bind  him  too  soon  to  an  acquired  character,  and  to 
allow  him  a  fair  time  to  disentangle  himself;  but  if  he  con- 
tinues to  reside  during  a  good  part  of  the  war,  contributing 
by  the  payment  of  taxes  and  other  means  to  the  strength  of 
the  country,  he  could  not  plead  his  special  purpose  with  any 
effect  against  the  rights  of  hostility."1  These  cases  clearly 
show  that  time  and  intent  are  the  two  great  elements  in 
determining  domicile. 

In  cases  of  acquired  domicile  original  character  easily  re- 
verts. In  order  that  it  may  do  so,  nothing  more  is  necessary 
than  that  the  person  domiciled  abroad  should  set  out  on  his 

1  C.  Robinson,  Admiralty  Reports,  vol.  II,  pp.  324,  325;  Scott,  Cases 
on  International  Law,  pp.  585-588. 


AND   PROPERTY   OF   ENEMY   CHARACTER  379 

return  journey  to  his  native  country,  intending  to  take  up 
his  abode  there.  Thus  in  1800,  in  the  case  of  the  Indian 
Chief,  Lord  Stowell  restored  the  property  of  Mr.  Johnson, 
a  citizen  of  the  United  States  domiciled  in  England.  It  had 
been  captured  because  it  was  engaged  in  a  traffic  prohibited 
to  British  subjects  but  allowed  to  neutral  American  citizens. 
But  on  proof  that  at  the  time  of  capture  Mr.  Johnson  had 
left  England  on  his  way  to  the  United  States  with  the  in- 
tention of  remaining  there,  Lord  Stowell  decided  that  he 
had  lost  his  domicile  of  choice  and  regained  his  domicile  of 
origin.  "  The  character,"  said  the  judge,  "  that  is  gained 
by  residence  ceases  by  non-residence.  It  is  an  adventitious 
character,  and  no  longer  adheres  to  him  from  the  moment 
that  he  puts  himself  in  motion  bona  fide  to  quit  the  country 
sine  animo  revertendi." l 

These  principles  of  the  British  prize  tribunals  were  de- 
liberately adopted  by  the  Supreme  Court  of  the  United 
States  in  the  case  of  the  Venus,2  which  arose  during  the  War 
of  1812-1814  between  the  two  countries.  They  are  indeed 
the  common  property  of  the  two  great  English-speaking 
powers,  though  most  European  nations  reject  the  doctrine 
of  domicile  on  which  they  are  founded. 

§   155 

We  have  now  to  consider  how  the  enemy  character  is 
acquired  by  property.     To  some  extent  we  have  already 
dealt  with  this  subject  incidentally  while  dis-  Enemy  character 
cussing  enemy  persons;  but  we  shall  find  that  "^p"^*0 
it  is  susceptible  of  separate  treatment,  and  that  possesses  u. 

^  U  t     ^  -  Property  of  the 

a   classification   can    be   made   ot   the  various  enemy  state, 
kinds  of  property  marked  by  the   hostile   taint.     Enemy 
property  comprises  first 

Property  belonging  to  the  enemy  state. 

1  C.  Robinson,  Admiralty  Reports,  vol.  Ill,  pp.  20,  21 ;  Scott,  Cases  on 
International  Law,  pp.  588-591. 

2  Cranch,  Reports  of  U.  S.  Supreme  Court,  vol.  VIII,  pp.  253-317;  Scott, 
Cases  on  International  Law,  pp.  591-597. 


380  THE  ACQUISITION   BY   PEKSONS 

Such  things  as  the  public  armed  vessels  of  the  enemy,  his 
guns  and  munitions  of  war,  are  of  a  preeminently  hostile 
character,  and  may  be  taken  in  all  places  where  it  is  lawful 
to  carry  on  warlike  operations;  but,  as  we  shall  see  in  the 
future,1  there  are  other  kinds  of  property  belonging  to  the 
enemy  state  which  are  wholly  or  partially  exempt  from  con- 
fiscation. 

§   156 
Next  comes 

Property  belonging  to  subjects  of  the  enemy  state. 

But  we  must  remember  that  if  this  is  connected  with  a  neu- 
tral domicile  acquired  by  its  owner,  it  is  accounted  neu- 
tral by  those  who  take  domicile  as  the  test  of  hostile  or 
friendly  character,  and  remains  in  their  view  free  from  hostile 
seizure.  On  land  the  property  of  enemy  subjects  is  exempt 
from  capture  as  a  general  rule,  to  which,  however,  there  are 
many  exceptions.2 

With  regard  to  property  at  sea,  it  often  happens  that  the 
enemy  owners  of  merchantmen  entitled  to  fly  the  enemy  flag 
The  property  of  endeavor  at  the  outbreak  of  war,  or  even  in 
enemy  subjects,  anticipation  of  it,  to  transfer  their  vessels  to 
neutrals  in  order  that  the  neutral  flag  may  protect  them 
from  capture,  and  sometimes  these  transfers  are  merely 
colorable.  Belligerents  are  therefore  obliged  to  take  pre- 
cautions against  evasion  of  their  rights.  The  rules  laid 
down  by  maritime  powers  in  order  to  effect  this  purpose  pro- 
ceeded on  similar  lines,  but  did  not  agree  in  every  particular. 
The  subject  was,  therefore,  discussed  at  the  Naval  Confer- 
ence of  1908-1909  with  a  view  to  bringing  about  uniformity; 
and  a  unanimous  agreement  was  reached.  Its  terms  are  em- 
bodied in  Articles  55  and  56  of  the  Declaration  of  London. 
A  distinction  is  drawn  between  transfers  effected  after  the 
outbreak  of  hostilities  and  transfers  effected  before  the  war 
began.  In  the  first  case  it  is  presumed  that  the  transfer  is 
void;  but  this  presumption  may  be  upset  by  proof  that  it 
1  See  §§  170,  174,  177.  a  See  §§  179, 180. 


AND   PROPERTY    OF   ENEMY    CHARACTER  381 

"  was  not  made  in  order  to  evade  the  consequences  to  which 
an  enemy  vessel,  as  such,  is  exposed."  The  right  to  tender 
such  proof  ceases,  however,  "  if  the  transfer  has  been  made 
during  a  voyage  or  in  a  blockaded  port,"  or  "  if  a  right  to 
repurchase  or  recover  the  vessel  is  reserved  to  the  vendor," 
or  "  if  the  requirements  of  the  municipal  law  governing  the 
right  to  fly  the  flag  under  which  the  vessel  is  sailing  have  not 
been  fulfilled." 

In  the  case  of  any  transfer  effected  before  the  declaration 
of  war,  it  is  legally  presumed  to  be  valid,  unless  the  ship  in 
question  has  been  divested  of  her  belligerent  nationality  less 
than  sixty  days  before  the  outbreak  of  hostilities  and  does 
not  carry  the  bill  of  sale  along  with  her  other  papers.  If 
she  has  this  document  on  board,  the  burden  of  proof  that 
the  transfer  "  was  made  in  order  to  evade  the  consequences  to 
which  an  enemy  vessel,  as  such,  is  exposed"  rests  on  the 
captors  ;  but  if  it  is  not,  then  the  new  neutral  owner  must 
prove  the  good  faith  of  the  transaction  or  submit  to.  the  con- 
demnation of  his  vessel.  Should  the  transfer  have  taken 
place  more  than  thirty  days  before  the  commencement  of 
the  war,  it  is  regarded  as  valid,  even  though  it  may  have 
been  made  to  avoid  the  chance  of  belligerent  capture,  unless 
the  captor  can  show  that  it  is  conditional,  incomplete,  ir- 
regular according  to  the  laws  of  the  countries  concerned,  or 
so  arranged  as  to  leave  to  the  vendor  the  control  of  the  ves- 
sel or  the  profits  arising  from  her  employment.  But  when 
the  transaction  is  completed  more  than  thirty  and  less  than 
sixty  days  before  the  war  began,  the  vessel  may  be  captured 
if  the  bill  of  sale  is  not  on  board,  and  even  if  in  all  other 
respects  the  transfer  is  unexceptionable,  and  the  prize  court 
releases  her  accordingly,  she  cannot  claim  compensation, 
since  the  absence  of  the  document  made  her  justly  suspect.1 

1  British  Parliamentary  Papers,  Miscellaneous,  No.  4  (1909),  pp.  58,  59,  87, 
88,  99,  100 ;  Higgins,  The  Hague  Peace  Conferences,  pp.  559,  560,  600-602  ; 
Supplement  to  the  American  Journal  of  International  Law,  vol.  Ill,  pp.  212- 
214. 


382  THE   ACQUISITION   BY   PERSONS 

As  to  cargoes  the  Naval  Conference  of  1908-1909  decided 
that  the  neutral  or  enemy  character  of  the  goods  that  com- 
pose them  was  determined  by  the  neutral  or  enemy  character 
of  their  owners.1  In  time  of  peace  goods  once  loaded  on 
board  a  vessel  belong  to  the  consignee  as  a  general  rule, 
which  may,  however,  be  reversed  by  special  agreement. 
But  in  war,  if  the  consignee  is  an  enemy,  no  special  agree- 
ment can  divest  him  of  his  proprietary  rights  in  them  from 
the  moment  they  are  ready  to  start  on  their  voyage.  If, 
however,  he  is  neutral,  proof  may  be  required  that  he,  and 
not  the  enemy  consignor,  is  the  real  owner.  The  presumption 
is  that  the  cargo  of  an  enemy  vessel  consists  of  enemy  goods, 
but  it  may  be  rebutted  by  evidence  to  the  contrary.2 

§  157 
The  next  kind  of  property  to  be  considered  is 

Property  owned  by  neutrals,  but  incorporated  in  enemy  com- 
merce or  subject  to  enemy  control. 

A  ship  chartered  by  the  enemy,  or  navigated  by  an  enemy 
captain  and  crew  would  be  treated  as  enemy  property, 
Neutral  property  even  though  she  belonged  to  a  neutral  owner, 
incorporated  in  an(j  the  same  f ate  would  befall  a  neutral  ship 

enemy  commerce 

or  subject  to          habitually  sailing  under   the  enemy  s   nag  or 

enemy  control.  ,     i   •  i .  <•  ,  ••  T,    . 

taking  a  pass  or  license  from  the  enemy.  It  is 
still  doubtful  what  would  be  the  fate  of  neutral  ships  en- 
gaged in  a  trade  which  before  the  war  had  been  reserved 
by  the  enemy  for  his  own  merchantmen,  but  was  thrown 
open  by  his  government  during  the  war  or  in  anticipation  of 
it.  Great  Britain  has,  under  what  is  called  her  Rule  of  War 
of  1756,  claimed  the  right  to  regard  such  vessels  as  enemy 
vessels,  and  at  the  Naval  Conference  she  supported  a  German 
proposal  to  insert  in  the  Declaration  of  London  a  rule  em- 
bodying her  view.  The  attempt  was,  however,  foiled  by  the 
strong  opposition  of  the  United  States  and  several  other 

1  Declaration  of  London,  Art.  68.  3  Ibid.,  Art.  69. 


AND   PROPERTY   OF   ENEMY   CHARACTER  383 

powers.  The  matter  is,  therefore,  left  open.1  It  may  in  the 
end  be  decided  by  the  International  Prize  Court,  or  it  may 
be  settled  at  the  next  Hague  Conference.  A  reasonable 
compromise  might  be  found  in  a  rule  that  permitted  such  a 
trade  to  neutrals  if  it  were  thrown  open  generally  and  for  all 
future  time,  but  forbade  it  if  the  permission  were  confined  to 
the  vessels  of  one  or  more  privileged  countries  or  limited  in 
time  to  the  duration  of  the  war  then  raging. 

There  can  be  no  doubt  that  neutral  goods  laden  on  board  a 
public  armed  vessel  of  the  enemy  forfeit  their  neutral  character 
and  become  liable  to  capture  as  enemy  property.  But  if  they 
are  laden  on  board  an  armed  enemy  merchantman  their  position 
is  not  clearly  denned.  In  1815  Lord  Stowell  decided  in  the  case 
of  the  Fanny  that  the  fact  of  being  found  on  board  an  enemy  ves- 
sel armed  to  resist  attack  was  conclusive  against  the  goods.2 
But  in  the  same  year  the  Supreme  Court  of  the  United  States 
took  the  contrary  view  in  the  case  of  the  Nereide,  and  held  that 
unless  the  neutral  owner  took  part  in  the  armament  or  the  resist- 
ance, his  goods  were  not  liable  to  forfeiture.3  Judge  Story, 
however,  supported  the  English  view  and  delivered  an  elaborate 
dissenting  judgment.  It  appears,  therefore,  that  there  is  a 
slight  balance  of  authority  in  favor  of  the  stricter  rule, 
which  seems  on  principle  to  be  the  better  of  the  two,  for  it 
is  difficult  to  see  what  other  object  the  neutral  owner  could 
have  had  in  view,  when  he  selected  an  armed  enemy  mer- 
chantman as  the  vehicle  for  his  goods,  than  to  profit  by  her 
force  in  order  to  defeat  the  search  and  capture  of  her 
enemy. 

1  Declaration  of  London,  Art.  57  ;  British  Parliamentary  Papers,  Miscel- 
laneous, No.  4  (1909),  p.  100,  and  Miscellaneous,  No.  5  (1909),  p.  247  ;  Arti- 
cle by  Admiral  Stockton,  American  Journal  of  International  Law,  vol.  Ill, 
pp.  610,  611. 

2  C.  Dodson,  Admiralty  Reports,  vol.  I,  pp.  443-449. 

3  Cranch,  Reports  of  U.  S.  Supreme  Court,  pp.  388-455 ;  Scott,  Cases  on 
International  Law,  pp.  884-894. 


384  THE   ACQUISITION    BY   PERSONS 

§  158 

The  last  kind  of  enemy  property  to  be  considered  may  be 
defined  as 

The  produce  of  estates  owned  by  neutrals  in  belligerent  territory 
or  in  places  in  the  military  occupation  of  the  enemy,  as  long 
as  it  remains  the  property  of  the  owner  of  the  soil. 

Such  property  is  regarded  as  enemy  property  according  to 
what  we  may  term  the  British  and  American  view,  even 
The  produce  of  though  the  neutral  owners  reside  in  their  own 
estates  owned  by  neutral  country.  The  point  was  fully  dis- 

neutrals  in  places  J  J 

under  enemy  con-    cussed  and  decided  by  the  Supreme  Court  of 

trol,  while  it  be-  -in  •          i  <•  rm  • 

longs  to  the  owner  the  United  States  in  the  case  of  the  Thirty 
Hogsheads  of  Sugar,  which  occurred  in  the  war 
of  1812-1814.  An  American  privateer  captured  a  cargo  of 
sugar  proceeding  in  a  British  vessel  from  the  Danish  island 
of  Santa  Cruz  to  a  commercial  house  in  London  at  the 
risk  of  its  owner,  the  proprietor  of  the  estate  whence  it 
came.  Denmark  was  an  ally  of  France,  and  Great  Britain 
was  at  one  and  the  same  time  engaged  in  waging  war  on 
them  and  carrying  on  a  separate  war  on  different  grounds 
with  the  United  States.  In  the  course  of  her  war  with 
Denmark  she  had  captured  the  island  of  Santa  Cruz  and  held 
it  under  her  belligerent  occupation.  Denmark  was  neutral 
in  the  war  between  Great  Britain  and  the  United  States  ; 
and  the  proprietor  of  the  sugar,  Adrian  Benjamin  Bentzon, 
was  a  Danish  subject  who  had  left  Santa  Cruz  and  was  living 
in  Denmark.  But  the  Supreme  Court  condemned  the  sugar 
on  the  ground  that  it  was  the  produce  of  a  place  that  must 
be  considered  for  purposes  of  war  as  belligerent  territory, 
and  was  when  captured  the  property  of  the  owner  of  that 
place.1 

1  Cranch,  Reports  of  U.  S.  Supreme  Court,  vol.  IX,  pp.  195-199  ;  Scott, 
Cases  on  International  Law,  pp.  598-601. 


AND   PROPERTY   OF   ENEMY   CHARACTER  385 


§  159 

We  are  now  in  a  position  to  answer  the  question,  How 
does  property  acquire  the  enemy  character  ?  Its  legal  con- 
dition is  determined  sometimes  by  the  nation-  summary  of  the 

,..          ,.   .  ,  -,  .  .  i        i  •       i         •       circumstances 

ality  of  the  owner  and  sometimes  by  his  domi-  under  which  the 


cite,  sometimes  by  the  character  of  the  place 
from  which  the  property  comes,  and  sometimes  property. 
by  the  nature  of  the  control  exercised  over  it.  There 
remains,  however,  a  difficulty  connected  with  the  double  or 
ambiguous  character  of  sovereignty  in  certain  cases.  Fortu- 
nately these  cases  have  tended  to  decrease  in  number  with  the 
simplification  of  the  political  condition  of  modern  Europe, 
though  it  may  well  be  doubted  whether  recent  assumptions 
of  protectorates  in  Africa  will  not  add  to  them  in  the 
future.  They  occur  when  two  or  more  powers  can  each 
claim  authority  over  certain  territory.  If  one  of  them  be 
belligerent  and  the  other  neutral,  it  is  difficult  to  tell  how 
the  territory  is  to  be  regarded  for  war  purposes.  The  pro- 
tectorate exercised  by  Great  Britain  over  the  Ionian  Islands 
gave  rise  to  such  a  difficulty  during  the  early  part  of  the 
Crimean  War,  when  the  Leucade,  an  Ionian  vessel,  was 
captured  by  a  British  cruiser  and  brought  in  for  adjudication 
before  a  prize  court  on  a  charge  of  trading  with  Russia,  the 
enemy  of  Great  Britain  in  the  war.  It  was  contended  that, 
since  the  Ionian  Islands  were  under  a  British  protectorate, 
they  were  parties  to  the  war  and  their  vessels  were  forbidden 
to  engage  in  commerce  with  the  enemy.  But  Dr.  Lushing- 
ton,  who  tried  the  case,  held  that  the  Ionian  republic  was 
not  a  party  to  the  war.  It  had  a  commercial  flag  of  its  own, 
and,  though  Great  Britain  occupied  its  fortresses  and  had 
control  of  its  diplomatic  arrangements,  it  was  not  involved 
in  the  public  acts  of  the  British  Government  unless  specially 
included.  There  had  been  no  special  inclusion  in  the  case 
of  the  then  existing  war.  British  vessels  had  been  forbidden 
to  trade  with  Russia,  but  Ionian  vessels  had  not.  He,  there- 


386 

fore,  restored  the  vessel,  but  would  not  give  costs  against  the 
captors  on  the  ground  that  the  point  was  a  very  difficult  one 
and  that  they  acted  in  perfect  good  faith.1  The  cession  of  the 
Ionian  Islands  to  Greece  in  1864  has  rendered  a  repetition 
of  the  case  impossible,  but  we  may  venture  to  point  out  with 
regard  to  it  that  the  judgment  seemed  to  leave  the  determi- 
nation of  the  status  of  the  island  republic  exclusively'in  the 
hands  of  one  of  the  belligerents.  It  is  possible  to  imagine 
circumstances  in  which  this  would  have  operated  unfairly 
towards  the  other.  If,  for  instance,  Great  Britain  had  used 
the  islands  as  a  depot  and  base  of  naval  operations  and  at 
the  same  time  claimed  immunity  for  their  commerce  as 
being  neutral,  Russia  would  have  had  good  cause  to  com- 
plain. In  discussing  cases  of  double  or  ambiguous  sover- 
eignty, Hall  lays  down  the  rule  that  the  use  to  which  a 
place  is  put  by  the  power  that  exercises  de  facto  control 
over  it  determines  whether  it  should  be  regarded  as  neutral 
or  belligerent  territory.2  This  test  is  at  once  simple,  effec- 
tive, and  fair  as  between  the  hostile  powers  ;  and  we  may 
hope  that  it  will  be  adopted  in  all  future  cases. 

1  Spinks,  Admiralty  Reports,  vol.  II,  p.  212. 
a  Hall,  International  Law,  6th  ed.,  pp.  510-612. 


CHAPTER   III 

THE   LAWS   OF   WAR   WITH  REGARD   TO   ENEMY   PERSONS 

§  160 

IT  will  be  convenient  to  begin  by  considering  the  case  of 
enemy  subjects  found  in  a  state  at  the  outbreak  of  war. 
The  treatment  of  such  persons  has  varied  very  The  treatment  K. 
much  at  different  times.  In  the  Middle  Ages  corded  to  enemy 

subjects  found 

a  right  to  detain  them  as  captives  was  held  to  in  a  state  at  the 

.    ,  -i     .1  i  i  outbreak  of  war. 

exist,  and  though  enemy  merchants  were  gen- 
erally allowed  to  depart,  the  power  to  arrest  did  not -become 
obsolete  from  disuse.  Accordingly  the  early  publicists  were 
obliged  to  lay  down  that  it  existed,  though  they  strove  to 
mitigate  its  severity.  Grotius  declared  that  enemies  found 
within  a  territory  at  the  outbreak  of  war  might  be  captured 
and  held  as  prisoners  while  the  war  lasted,  but  he  added 
that  they  might  not  be  detained  after  the  termination  of  hos- 
tilities, as  in  his  day  ordinary  prisoners  were.1  But  as 
commerce  grew  more  powerful  arrest  was  less  frequent,  till 
in  the  middle  of  the  eighteenth  century  the  right  to  resort 
to  it  was  denied  by  Vattel ; 2  and  since  that  day  numerous 
treaties  have  been  negotiated,  giving  a  time  for  withdrawal 
varying  from  six  months  to  a  year.  Such  stipulations  are 
hardly  needed  now;  for  the  old  right  of  arrest  has  been 
rendered  obsolete  by  the  continuous  contrary  custom  of 
nearly  a  hundred  and  fifty  years.  The  only  case  of  deten- 
tion to  be  found  in  modern  times  occurred  in  1803,  when 

1  De  Jure  Belli  ac  Pacts,  bk.  Ill,  ch.  ix,  4. 

2  Droit  des  Gens,  bk.  Ill,  §  63. 

387 


388  THE  LAWS   OF   WAR 

Napoleon  arrested  the  British  subjects  found  in  France  after 
the  rupture  of  the  Treaty  of  Amiens;  but  this  was  placed  on 
the  ground  of  reprisal,  and  has  almost  always  been  regarded  as 
a  violent  proceeding  carried  out  in  defiance  of  right.  The 
modern  doctrine  is  that  expulsion  may  be  resorted  to  in  ex- 
treme cases,  but  unless  there  are  special  reasons  to  the  con- 
trary enemy  subjects  should  be  allowed  to  remain  in  the 
country  as  long  as  they  give  no  aid  or  information  to  their 
own  side.  Great  Britain  inaugurated  this  liberal  policy.  In 
1756,  at  the  outbreak  of  war  with  France,  she  gave  permission 
for  French  subjects  "  who  shall  demean  themselves  dutifully  " 
to  remain  in  the  country;  and  her  treaty  of  1794  with  the 
United  States  was  the  first  to  provide  that  in  future  wars 
between  the  contracting  parties,  subjects  of  each  residing  in 
the  country  of  the  other  should  remain  unmolested  as  long 
as  they  lived  peaceably  and  observed  the  laws,  and  should  be 
granted  a  term  of  twelve  months  to  wind  up  their  aifairs  and 
leave,  if  their  conduct  caused  them  to  be  suspected.1  Other 
states  have  followed  this  example,  and  treaties  containing 
similar  provisions  are  constantly  being  concluded.  A  mod- 
ern instance  of  expulsion  occurred  in  1870  when  the  French 
Government  ordered  German  subjects  to  leave  the  depart- 
ment of  the  Seine  at  the  time  when  the  German  armies 
were  moving  on  Paris  and  the  population  was  intensely  ex- 
cited against  all  who  were  suspected  of  belonging  to  the 
enemy  nationality.  The  authorities  felt  doubtful  of  their 
ability  to  protect  such  persons,  and  therefore  adopted  the 
extreme  measure  of  compelling  them  to  depart.  The  Boer 
War  of  1899-1902  afforded  another  instance,  and  the  Russo- 
Japanese  War  of  1904-1905  a  third.  In  the  former  struggle 
various  categories  of  British  subjects  living  in  the  territory 
of  the  two  Dutch  republics  were  expelled,  and  in  the  latter 
Japanese  residents  in  the  Russian  Imperial  Lieutenancy  of 
the  Far  East  were  ordered  to  depart,  though  no  expulsion 

1  Vattel,  Droit  des  Gens,  bk.  Ill,  §  63 ;    Treaties  of  the   United  States, 
pp.  392,  393. 


WITH    REGARD   TO    ENEMY    PERSONS  389 

took  place  from  the  rest  of  the  Russian  Empire.  Japan, 
on  the  other  hand,  allowed  the  Russians  within  her  borders 
to  remain  during  the  war  on  condition  that  they  did  nothing 
contrary  to  Japanese  interests.1 

It  is  clear  that  in  the  absence  of  treaty  stipulations  the 
right  to  expel  remains,  though  the  right  to  arrest  and  im- 
prison must  be  regarded  as  obsolete.  This  last  statement, 
however,  applies  only  to  alien  enemies  engaged  in  peaceful 
pursuits,  and  likely  to  continue  so  occupied  throughout  the 
war.  But  now  that  most  continental  nations  have  resorted  to 
compulsory  military  service,  it  often  happens  that  a  young 
man  who  settles  in  a  foreign  country  is  already  a  trained 
soldier,  and  would  be  recalled  to  the  colors  in  the  event  of 
war  between  the  country  of  his  birth  and  the  country  of  his 
residence.  What  power  has  the  latter  of  protecting  herself 
against  the  reenforcement  of  her  enemy's  armed  forces  by 
thousands  of  effective  combatants  ?  If  she  expels  them,  or 
merely  permits  them  to  go  should  they  desire  to  do,  so,  they 
will  soon  be  fighting  against  her.  If  she  bids  them  remain, 
whether  they  wish  to  depart  or  not,  they  may  rise  and  para- 
lyze her  defence  in  the  event  of  invasion,  and  would  in  any 
case  need  constant  watching.  In  recent  times  they  have 
been  permitted  to  depart  ; 2  but  a  third  course  is  to  revive  the 
right  of  arrest,  which  has  never  been  formally  abandoned. 
It  fell  into  disuse  in  times  when  soldiers  were  a  professional 
class,  little  likely  to  migrate  by  thousands  and  tens  of  thou- 
sands into  foreign  countries  in  order  to  earn  therein  a  peace- 
ful living  by  commercial  and  industrial  pursuits.  The  new 
International  Law  which  is  rapidly  growing  up  by  means  of 
general  agreement  among  civilized  powers  might  with  ad- 
vantage make  a  pronouncement  on  this  subject.  It  would  be 
necessary  to  distinguish  between  men  who  on  their  return 

1  Times  History  of  the  War  in  South  Africa,  vol.  II,  p.  125,  vol.  IV,  pp. 
149-151;  Takahashi,  International  Law  Applied  to  the  Russo-Japanese  War, 
pp.  20-38. 

2  Bonfils-Fauchille,  Droit  International,  4th  ed.,  §  1053. 


390  THE  LAWS   OF   WAR 

would  be  embodied  immediately  in  their  country's  forces,  and 
others,  whether  men  or  women,  who  would  in  all  probability 
continue  their  harmless  avocations,  if  left  unmolested.  The 
latter  should  be  free  either  to  remain  during  good  behavior, 
or  to  depart  when  they  pleased.  With  regard  to  the  former, 
the  country  of  their  residence  should  be  armed  with  power  to 
detain  them  as  prisoners  of  war,  if  it  thought  fit.  A  prece- 
dent for  discrimination  of  this  kind  can  be  found  in  the  action 
of  the  Hague  Conference  of  1907.  In  its  sixth  Convention 
it  empowered  a  belliger&nt  to  capture  enemy  merchantmen 
found  in  its  ports  at  the  outbreak  of  hostilities  if  their  build 
showed  that  they  were  "  intended  for  conversion  into  war- 
ships," while  it  allowed  no  confiscation  in  the  case  of  other 
enemy  vessels  of  commerce  similarly  situated.1 

§161 

The  old  idea  of  war  was  that  it  wrought  an  absolute 
interruption  of  all  relations  between  the  belligerents,  ex- 
Ancient  and  mod-  cept  those  arising  from  force,  and  delivered 

lnieneeSp°ermies-        OV6r     the    6nemy    and    a11    that    he     POSSCSSed    to 

sibie  m  war.  unlimited  violence.  Even  so  humane  a  man 
as  Grotius,  writing  at  a  period  so  late  in  the  world's  history 
as  1625,  was  obliged  to  declare  that  by  the  law  of  nations 
it  was  lawful  to  put  to  death  all  persons  found  within  the 
enemy's  territory,  including  women  and  children  and  such 
resident  strangers  as  did  not  depart  within  a  reasonable 
time.2  But  he  is  careful  to  add  that  these  extreme  severi- 
ties are  allowed  only  in  the  sense  that  they  are  not  forbidden 
by  the  customs  of  nations.  He  pleads  earnestly  for  better 
practices,  arguing  that  justice  requires  a  belligerent  to  spare 
those  who  have  done  no  wrong  to  him,  and  even  when  jus- 
tice does  not  demand  the  exercise  of  mercy,  it  is  approved 

1  Whittuck,   International  Documents,  pp.  152-153  ;    Supplement  to  the 
American  Journal  of  International  Law,\o\.  II,  pp.  128-130 ;   Higgins,  The 
Hague  Peace  Conferences,  p.  297. 

2  De  Jure  Belli  ac  Pads,  bk.  in,  ch.  IT. 


WITH   REGARD   TO   ENEMY   PERSONS  391 

by  goodness,  moderation,  and  magnanimity.  He  excepts  by 
name  from  liability  to  slaughter  women,  children,  old  men, 
priests,  husbandmen,  merchants,  and  prisoners.1  But  these 
temperamenta  belli  are  recommended  by  him  as  counsels  of 
perfection,  rather  than  laid  down  as  actual  law.  They  were 
eagerly  seized  upon  by  the  more  humane  of  his  successors, 
and  gradually  developed  into  a  broad  distinction  between 
combatants  and  non-combatants.  From  the  Peace  of  West- 
phalia in  1648  an  improvement  in  the  usages  of  warfare  set 
in,  and  as  they  became  less  severe,  publicists  discarded  the 
old  doctrine  that  war  authorized  the  citizens  and  subjects  of 
each  of  the  belligerent  states  to  exercise  unlimited  violence 
against  its  foes,  and  substituted  for  it  the  theory  that  only 
so  much  stress  may  be  put  upon  an  enemy  as  is  sufficient  to 
destroy  his  power  of  resistance.2  War  is  in  its  nature  harsh 
and  cruel.  As  long  as  it  exists  at  all  it  must  involve  hard 
blows  and  terrible  suffering.  But  all  possible  mitigations 
and  restraints  are  contained  within  the  principle  we  have 
just  enunciated  and  can  easily  be  deduced  from  it.  It  limits 
not  only  the  classes  to  whom  violence  may  be  applied,  but 
also  the  measure  and  extent  of  the  violence  when  applied. 
Non-combatants  do  not  contribute  to  the  strength  of  an 
enemy  except  by  paying  taxes  and  affording  supplies.  This 
can  be  prevented  without  subjecting  them  to  personal  attack 
or  plunder,  by  the  process  of  occupying  the  district  where 
they  live.  Hence  it  follows  that  they  may  not  be  destroyed. 
Force  is  necessary  to  overcome  the  resistance  of  the  enemy's 
fighting  men.  When  that  end  is  attained,  further  infliction 
of  pain  is  useless.  Hence  it  follows  that  the  wounded  must 
be  spared  and  those  who  surrender  must  be  received  as 
prisoners. 

1  De  Jure  Belli  ac  Pads,  bk.  Ill,  ch.  xi. 

2  See  the  Preamble  to  the  Declaration  of  St.  Petersburg  to  be  found  in 
Whittuck,  International  Documents,  p.  10,  and  Higgins,  The  Hague  Peace 
Conferences,  pp.  5,  6. 


392  THE  LAWS   OF   WAR 

§162 

It  is  a  curious  fact  that  till  recent  times  no  competent 
thinker  has  endeavored  to  systematize  and  codify  the  rules 
Modem  military  of  warfare,  though  discussions  on  various  ques- 
tions connected  with  the  operations  of  war  are 
almost  as  old  as  human  literature.  The  attempt  was  first 
made  by  Dr.  Lieber,  who  produced  in  1863  a  body  of  rules 
for  the  conduct  of  war  on  land,  which  were  adopted  by  the 
government  of  the  United  States,  and  issued  to  their  troops 
then  engaged  in  the  civil  war  with  the  Southern  Confederacy 
as  Instructions  for  the  Government  of  Armies  of  the  United 
States  in  the  Field.  They  were  largely  based  on  the  humane 
principles  that  we  have  just  enunciated,  as  were  also  the 
military  manuals  soon  after  issued  in  imitation  of  the  Ameri- 
can example  by  some  of  the  leading  European  powers.  All 
these  documents  were  unilateral  declarations,  and  were  bind- 
ing only  on  the  forces  for  whom  they  were  drawn  up.  But  in 
1874  an  attempt  was  made  by  the  Emperor  Alexander  II  of 
Russia  to  bring  about  the  adoption  of  a  common  code  for 
civilized  states.  At  his  instigation  a  conference  of  repre- 
sentatives of  all  the  powers  of  Europe  met  at  Brussels  in  that 
year  to  discuss  the  laws  of  warfare  on  land.  After  long  dis- 
cussion the  delegates  were  able  to  give  their  approval  to  a  series 
of  articles  that  would  have  formed  an  excellent  basis  for  a  code, 
though  several  difficult  points  were  passed  over  or  evaded.1 
But  Great  Britain  declined  to  enter  into  any  further  negoti- 
ations for  their  modification  and  adoption;  and,  therefore, 
though  most  of  them  were  already  law  by  usage,  the  whole 
never  became  binding  by  agreement  as  a  code.  Nevertheless 
they  were  a  potent  influence  in  the  production  of  one.  The 
Manual  of  the  Laws  of  War  on  Land  adopted  at  Oxford  in 
1880  by  the  Institute  of  International  Law  was  based  on 
them ;  2  and  the  two  together  formed  the  base,  and  much 

1  British  Parliamentary  Papers,  Miscellaneous,  No.  1  (1875),  pp.  320-324. 

2  Tableau  General  de  VInstitut  de  Droil  International,  pp.  173-190. 


WITH   REGARD   TO   ENEMY  PERSONS  393 

more  than  the  base,  of  the  Regulations  passed  by  the  Hague 
Conference  of  1899,  and  annexed  to  the  Convention  Respect- 
ing the  Laws  and  Customs  of  War  on  Land  which  was  signed 
and  ratified  by  nearly  all  the  states  of  the  civilized  world. 
The  first  article  of  the  Convention  bound  the  signatory 
powers  to  issue  instructions  to  their  land  forces  in  conformity 
with  the  annexed  Regulations.1  The  Hague  Conference  of 
1907  not  only  reenacted  this  obligation,  but  improved  the 
Regulations,  and  made  the  contracting  parties  responsible, 
when  belligerents,  for  all  acts  committed  by  persons  forming 
part  of  their  armed  forces,  and  rendered  them  liable  to  pay 
compensation  if  the  case  demanded  it.2 

Thus  the  old  customary  law  based  on  general  usage  has 
been  largely  superseded  by  rules  deriving  their  force  from 
express  consent  given  in  the  form  of  signatures  to  a  law- 
making  treaty.  Practically  the  whole  civilized  world  has 
assented  to  it ;  and  a  state  that  openly,  avowedly,  and  of  set 
purpose,  violates  its  provisions  will  dishonor  its  own  signa- 
ture and  write  itself  down  as  an  unscrupulous  pledge- 
breaker.  It  will  not  find  such  a  reputation  helpful  when 
next  it  wants  to  come  to  an  agreement  with  its  neighbors, 
even  if  they  do  not  rise  in  indignation  at  the  moment  and 
compel  it  to  mend  its  ways.  We  are  not  speaking  here  of  the 
possible  excesses  of  troops  that  have  got  completely  out  of 
control,  or  of  deplorable  occurrences,  such  as  the  shooting  of 
a  wounded  foe,  which  may  happen  occasionally  in  the  hurly- 
burly  of  conflict  without  any  command  from  .-esponsible 
authorities.  These  things  are  incidents  of  all  wars.  We 
must  look  to  increased  self-control  and  improved  discipline 
to  reduce  them  to  a  minimum  ;  and  as  long  as  they  exist, 
reputable  states  are  bound  to  punish  their  authors.  What 
we  have  in  mind  is  the  case  of  a  conscious  and  deliberate 

1  Higgins,  The  Hague,  Peace  Conferences,  p.  211;  Whittuck,  International 
Documents,  pp.  36,  120;  Supplement  to  the  American  Journal  of  Interna- 
tional Law,  vol.  II,  pp.  92,  93. 

2  Higgins,  The  Hague  Peace  Conferences,  pp.  210-213. 


394  THE  LAWS  OF  WAR 

violation  of  the  laws  of  war  as  a  matter  of  state  policy. 
Now  that  these  laws  are  being  clearly  defined  and  solemnly 
accepted  by  all  civilized  states,  the  nation  that  could  thus 
act  must  possess  at  once  extreme  unscrupulousness  and 
enormous  strength.  It  is  just  possible  that  now  and  again 
such  a  combination  would  occur.  A  ruler  drunk  with  the 
consciousness  of  overwhelming  power  might  venture  to  defy 
the  moral  sentiments  of  mankind,  but  only  to  discover  by 
and  by  that  outraged  humanity  avenges  itself  in  unexpected 
ways.  He  could  not  ride  off  on  the  plea  of  military  neces- 
sity; for,  as  Professor  Westlake  has  been  careful  to  point 
out,1  we  have  evidence  in  the  preamble  of  the  Hague  Con- 
ventions on  the  subject  that  "  military  necessity  has  been 
taken  into  account  in  framing  the  Regulations,  and  has  not 
been  left  outside  to  control  and  limit  their  application." 
The  powers  distinctly  say  that  the  wording  of  the  rules  which 
they  have  drawn  up  "has  been  inspired  by  the  desire  to 
diminish  the  evils  of  war  as  far  as  military  necessities  per- 
mit." 2  Those,  therefore,  who  imagine  that  a  state  is  free  to 
ignore  because  of  the  exigencies  of  the  moment  any  rule 
to  which  it  has  subscribed  its  signature  are  as  erroneous  in 
their  reasoning  as  they  are  anarchical  in  their  sentiments. 
The  laws  of  war  are  made  to  be  obeyed,  not  to  be  set  aside 
at  pleasure. 

But  the  military  code  is  not  yet  complete.  The  plenipo- 
tentiaries assembled  at  both  the  Hague  Conferences  were 
abundantly  aware  of  the  fact  that  their  Regulations  for  the 
conduct  of  war  on  land  did  not  cover  the  whole  ground. 
They  put  on  record  in  the  preamble  of  the  Convention  of 
1899  on  the  subject,  and  again  in  the  similar  Convention  of 
1907,  that  it  had  not  "  been  found  possible  at  present  to  con- 
cert stipulations  covering  all  the  circumstances  which  arise 

1  International  Law,  part  II,  p.  67. 

2  Higgins,  The  Hague  Peace  Conferences,  p.  209  ;  Whittuck,  International 
Documents,  pp.  35,  36,  125  ;  Supplement  to  the  American  Journal  of  Inter* 
national  Law,  vol.  II,  p.  91. 


WITH  REGARD   TO  ENEMY  PERSONS  395 

in  practice."  They  then  proceeded  to  negative  the  supposi- 
tion that  the  omitted  questions  should  "be  left  to  the  ar- 
bitrary opinion  of  military  commanders,"  and  went  on  to 
declare  that  "  in  cases  not  covered  by  the  rules  adopted  by 
them,  the  inhabitants  and  the  belligerents  remain  under  the 
protection  and  governance  of  the  principles  of  the  law  of 
nations,  derived  from  the  usages  established  among  civilized 
peoples,  from  the  laws  of  humanity,  and  from  the  dictates 
of  the  public  conscience."1  Thus  it  is  still  necessary  to 
appeal  to  the  best  customs  of  the  best  peoples,  and  even  to 
supplement  and  modify  them  by  moral  considerations,  in 
order  to  fill  up  the  gaps  in  the  laws  of  war  on  land  as  formu- 
lated by  the  quasi-legislative  organ  of  the  society  of  nations. 
We  shall  therefore  resort  to  this  method  in  the  outline  that 
follows. 

§163 

"We  will  begin  by  dealing  with  combatants.     It  has  been 
shown  already  2  that  the  distinction  between  them  and  non- 
combatants  in  respect  of  the  severities  of  war-  Treatment  of 
fare  is  comparatively  modern,  and  represents  a  ^grant*!* 
conspicuous  triumph  of  humanity.     It  is,  how-  quarter, 
ever,  obscured  by  the   wording  of  Article  3  of  the  Hague 
Regulations,  which  declares  that  "the  armed  forces  of  the 
belligerents  may  consist  of  combatants  and  non-combatants." 
Here  the  non-combatants  are  a  division  of  the  armed  forces, 
and  consist  apparently  of  those  who  perform  auxiliary  ser- 
vices, such  as  driving  a  baggage  wagon  or  working  a  field 
telegraph.     Such   persons  carry  arms  and  are  expected  to 
use  them  if  attacked,  though  they  are  not  placed  in  the  fight- 
ing line  and  as  a  rule  take  no  active  part  in  the  conflict. 
They  should,  however,  be  reckoned  as  combatants,  since  they 

1  Higgins,  The  Hague  Peace  Conferences,  pp.  201-211  ;  Whittuck,  Inter- 
national  Documents,  pp.  36,  125,  126  ;  Supplement  to  the  American  Journal 
of  International  Law,  vol.  II,  pp.  91,  92. 

aSee  §161. 


396  THE  LAWS   OF   WAR 

are  attached  to  the  combatant  forces  and  do  fight  on  rare  oc- 
casions. The  true  non-combatants  are  those  who  are  enrolled 
in  no  force,  carry  no  arms,  and  are  engaged  in  the  ordinary 
occupations  of  peaceful  life.  We  will  use  the  distinction  in 
what  we  conceive  to  be  the  correct  sense;  and  the  first  propo- 
sition we  will  lay  down  is  that 

Combatants  are  entitled  to  quarter. 

When  an  armed  enemy  ceases  to  fight  and  asks  for  mercy, 
he  is  said  to  solicit  quarter ;  and  when  his  life  is  spared  and 
he  is  made  prisoner,  quarter  is  said  to  have  been  granted  to 
him.  The  slaughter  of  the  vanquished  was  a  common  in- 
cident of  warfare  till  about  the  end  of  the  sixteenth  cen- 
tury, when  it  began  to  be  deemed  obligatory  to  give  quarter 
to  those  who  surrendered  and  begged  for  life.  But  for  some 
time  longer  the  rule  in  favor  of  it  was  frequently  disregarded, 
or  suspended  altogether  with  regard  to  certain  classes 
of  combatants,  as,  for  instance,  Croats  and  Pomeranians  in 
the  Thirty  Years'  War,  and  Irish  royalists  in  the  English 
civil  war  between  King  and  Parliament.  The  more  humane 
practice,  however,  steadily  won  its  way  till  it  became  a  part 
of  the  code  of  military  honor.  According  to  modern  ideas 
quarter  can  be  refused  only  when  those  who  ask  for  it  at- 
tempt to  destroy  those  who  have  shown  them  mercy.  But 
it  must  be  remembered  that  in  a  charge,  and  especially  a 
cavalry  charge,  it  is  almost  impossible  to  distinguish  between 
those  who  wish  to  surrender  and  those  who  are  determined  to 
die  fighting.  The  twenty-third  Article  of  the  Hague  Regu- 
lations declares  that  it  is  particularly  forbidden  "to  kill  or 
wound  an  enemy  who,  having  laid  down  his  arms,  or  no  longer 
having  means  of  defence,  has  surrendered  at  discretion  "  and 
also  "to  declare  that  no  quarter  will  be  given."  1  In  view  of 
the  history  of  war  we  should  note  carefully  that  these  rules 

1  Higgins,  The  Hague  Peace  Conferences,  p.  235  ;  Whittuck,  International 
Documents,  p.  135 ;  Supplement  to  the  American  Journal  of  International 
Law,  vol.  II,  p.  106. 


WITH   EEGAKD  TO   ENEMY  PERSONS  397 

contain  no  saving  clauses.  The  conquerors  of  antiquity 
generally  put  to  death  all  the  defenders  of  besieged  places. 
In  the  Middle  Ages  it  was  deemed  an  offence  for  a  garrison 
to  prolong  a  resistance  that  the  besiegers  regarded  as  fruitless, 
and  if  the  place  was  finally  given  up,  some  of  them  were  exe- 
cuted. Even  in  comparatively  recent  times,  when  a  fortress 
was  taken  by  assault,  the  fighting  men  could  claim  no  mercy. 
This  was  the  opinion  of  the  great  Duke  of  Wellington,  who 
wrote,  "  I  believe  it  has  always  been  understood  that  the  de- 
fenders of  a  fortress  stormed  have  no  right  to  quarter."  1 
His  own  practice  was  more  merciful.  When  he  carried  a 
place  by  storm,  he  accepted  the  surrender  of  those  of  the  gar- 
rison who  survived  the  struggle.  The  growth  of  this  humane 
practice  has  been  fostered  by  a  change  in  the  conditions  of 
warfare.  Towns  are  now  defended  by  forts  and  earthworks 
erected  at  a  considerable  distance  from  them.  When  some 
of  these  are  taken,  the  place  becomes  untenable,  and  is  sur- 
rendered, as  was  Port  Arthur  in  1905  as  soon  as  the  Japanese 
captured  203-metre  hill.  Recent  conflicts  between  civilized 
powers  have  afforded  no  instance  of  the  slaughter  of  a  garri- 
son. And  when  the  time  came  to  formulate  the  laws  of  war 
by  international  agreement,  no  attempt  was  made  to  restore 
the  old  severity,  but  the  obligation  to  give  quarter  was  im- 
posed in  the  widest  terms. 

§164 

We  will  now  consider  the  case  of  those  who  have  given 
themselves  up  and  received  quarter.  The  rules  at  present 
in  force  with  regard  to  them  may  be  summed  up  in  the  words, 

Prisoners  of  war  are  cared  for  and  treated  with  humanity. 

But  it  was  the  custom  of  early  times  to  kill  them,  and  some 
tribes  tortured  and  ate  them.  Slavery  was  a  mitigation  of 
their  lot.  Their  reduction  to  it  was  justified  by  the  legal- 

1  Despatches,  2d  Series,  vol.  I,  pp.  93,  94. 


398  THE  LAWS   OF   WAR 

minded  Romans  on  the  ground  that  it  was  a  merciful  relaxa- 
tion of  the  strict  rules  of  warfare  which  gave  the  victor  a 
right  to  the  life  of  his  captives.1  Enslavement  was  practised 
long  after  slaughter  was  abandoned.  A  species  of  state 
servitude  survived  the  sale  of  prisoners  of  war  as  human  cattle 
to  any  chance  buyer.  As  late  as  the  seventeenth  century  the 
Spaniards  sent  their  prisoners  to  the  galleys.  Grotius  de- 
clared that  Christians  ought  to  be  content  with  ransom  and 
refrain  from  reducing  one  another  to  slavery.2  In  mediaeval 
warfare  prisoners  of  rank  and  fortune  were  generally  allowed 
to  ransom  themselves ;  but  the  common  soldiers,  who  could 
not  raise  the  necessary  funds,  were  vilely  treated  and  occa- 
sionally slain.  Then  it  came  to  be  regarded  as  the  business 
of  the  state  to  redeem  its  subjects  from  captivity,  and  we 
find  in  the  seventeenth  century  international  agreements  for 
ransom  according  to  an  established  scale.  The  last  of  these 
was  concluded  between  England  and  France  in  1780.  It 
valued  a  marshal  of  France  or  an  English  admiral  at  sixty 
men,  officers  of  lower  grades  were  assessed  in  proportion,  and 
the  equivalent  of  a  man  in  English  money  was  a  pound  ster- 
ling. Thus  a  marshal  or  an  admiral  could  be  exchanged  for 
sixty  men  or  ransomed  for  sixty  pounds.3  In  modern  times 
exchange  became  the  rule,  but  in  recent  wars  it  has  been  sel- 
dom resorted  to,  and  the  prisoners  on  both  sides  have  been 
held  to  the  end  of  the  struggle.  Officers  have  been  fre- 
quently released  on  parole,  that  is  to  say,  after  pledging  their 
word  of  honor  not  to  serve  again  during  the  existing  war 
against  their  captor  or  his  allies,  and  occasionally  the  benefit 
of  this  practice  has  been  extended  to  the  rank  and  file.  Ac- 
cording to  modern  rules  the  right  to  detain  prisoners  ceases 
when  the  war  ceases.  Each  side  must  then  make  arrange- 
ments for  their  repatriation.  But  up  to  the  Peace  of  West- 
phalia in  1648  it  was  necessary  to  make  special  stipulations  for 

1  Justinian,  Institutes,  bk.  I,  tit.  iii,  3. 

2  De  Jure  Belli  ac  Pads,  bk.  Ill,  ch.  vii,  9. 
8  Manning,  Law  of  Nations,  bk.  IV,  ch.  viii. 


WITH   REGARD  TO  ENEMY   PERSONS  399 

such  release  without  ransom  ;  and  in  default  of  any  arrange- 
ment of  the  kind  the  prisoners  were  detained  in  captivity. 

The  lot  of  prisoners  is  now  determined  by  the  Hague  Regu- 
lations of  1907.  What  follows  is  an  outline  of  these  rules 
with  a  few  explanations  and  additions.  The  public  armed 
forces  of  the  enemy  are  not  the  only  persons  who  may  be 
made  prisoners  of  war.  Those  who  follow  an  army  without 
belonging  to  it,  such  as  newspaper  correspondents,  sutlers, 
and  contractors,  may  be  detained,  if  the  enemy  thinks  fit  to 
do  so.  In  that  case  they  have  a  right  to  the  treatment  ac- 
corded to  prisoners  of  war,  if  they  can  produce  a  certificate 
from  the  military  authorities  of  the  army  that  they  were  ac- 
companying. We  are  not  told  what  is  to  happen  to  them 
when  they  have  no  such  certificate  and  their  detention  is 
deemed  advisable.  They  should  certainly  be  treated  with 
humanity.  In  practice  the  alternative  lies  between  a  more 
or  less  rough  dismissal  and  what  is  now  the  privileged  posi- 
tion of  prisoners  of  war.  Members  of  the  enemy's  royal 
family,  his  chief  ministers  of  state,  and  his  diplomatic  agents, 
would  doubtless  be  captured  if  found  in  the  theatre  of  hos- 
tilities. It  was  the  practice  to  detain  as  prisoners  the  crews 
of  enemy  merchantmen  seized  as  prizes ;  but  the  eleventh 
Convention  of  the  Hague  Conference  of  1907  released  them 
from  this  liability,  on  condition  of  a  promise  in  writing  not 
to  undertake  any  hostile  operations  during  the  continuance  of 
the  war.  This  refers  to  enemy  subjects.  Neutral  subjects 
are  to  be  set  at  liberty  without  conditions,  if  they  are  common 
sailors.  If  they  are  officers  of  the  captured  vessel,  they  must 
promise  in  writing  not  to  serve  on  an  enemy  ship  while  the 
war  lasts.1  The  position  of  chaplains  and  surgeons  was  at 
one  time  doubtful  ;  but  the  Geneva  Convention  of  1864  pro- 
tected them  from  capture,  together  with  the  whole  staff  en- 
gaged in  the  care  of  the  sick  and  wounded,  while  employed 

1  Higgins,  The  Hague  Peace  Conferences,  pp.  397,398  ;  Whittuck,  Interna- 
tional Documents,  pp.  185,  186  ;  Supplement  to  the  American  Journal  oj 
International  Law,  vol.  II,  pp.  170,  171. 


400  THE  LAWS   OF   WAR 

in  their  humane  tasks,  and  the  revised  Geneva  Convention 
of  1906  declared  in  so  many  words  that  "  if  they  fall  into 
the  hands  of  the  enemy,  they  shall  not  be  treated  as  prison- 
ers of  war."  The  tenth  of  the  Hague  Conventions  of  1907 
applies  the  same  rule  to  the  religious,  medical,  and  hospital 
staff  of  any  captured  ship.1 

As  soon  as  prisoners  are  captured  they  come  under  the 
power  of  the  hostile  government.  It,  and  not  the  individual 
captors,  is  responsible  for  their  treatment.  Their  personal 
belongings  remain  their  property,  with  the  exception  of  their 
arms,  horses,  and  military  papers,  which  may  be  confiscated. 
The  government  into  whose  hands  they  have  fallen  is  bound 
to  feed  and  clothe  them,  putting  them  in  these  respects  on  a 
level  with  its  own  troops.  They  may  be  set  at  liberty  on 
parole,  if  the  laws  of  their  country  allow  them  to  pledge  their 
word  in  exchange  for  freedom  ;  but  in  such  a  case  their  own 
government  must  neither  require  nor  accept  from  them  any 
service  incompatible  with  the  parole  given.  Should  they 
break  their  word  of  honor,  and  be  recaptured  while  serving 
again,  they  have  no  claim  to  the  treatment  of  prisoners  of 
war,  but  may  be  put  on  trial  before  a  military  court.  Such 
courts  may  inflict  the  death  penalty,  though  the  Hague  Code 
does  not  go  so  far  as  to  suggest  that  they  should.  Speaking 
generally,  prisoners  can  only  be  interned;  that  is,  restricted 
under  proper  supervision  to  a  fortress,  or  camp,  or  indeed  any 
reasonably  healthy  locality  ;  but  they  may  be  placed  in  con- 
finement as  a  measure  of  safety,  and  for  no  longer  time  than 
the  necessity  continues.  This  last  stipulation  in  their  favor 
is  one  of  the  contributions  of  Latin  America  to  the  Hague 
Code.  It  was  proposed  at  the  second  Conference  by  the 
Cuban  delegate,  and  carried  unanimously.2  Disciplinary 
measures  may,  of  course,  be  taken  to  put  down  insubordina- 

1  Higgins,  The  Hague  Peace  Conferences,  pp.  9, 23, 369  ;  Whittuck,  Interna- 
tional Documents,  pp.  3,  75,  177 ;  Supplement  to  the  American  Journal  of 
International  Law,  vol.  I,  pp.  90,  203,  and  vol.  II,  p.  159. 

2  Higgins,  The  Hague  Peace  Conferences,  pp.  261,  262. 


WITH   REGARD   TO  ENEMY  PERSONS  401 

tion,  and  prevent  escape.  Prisoners  caught  in  an  attempt 
to  get  away  may  in  the  last  resort  be  cut  down  or  shot,  and, 
if  recaptured,  they  may  be  punished.  But  if  they  succeed 
and  are  able  to  rejoin  their  own  army  or  leave  the  territory 
occupied  by  the  army  that  captured  them,  no  severity  of  any 
kind  may  be  inflicted  on  them  because  of  their  escape,  should 
they  be  recaptured.  Prisoners  who  escape  to  neutral  terri- 
tory, and  prisoners  who  are  brought  by  troops  taking  refuge 
there,  are  to  be  left  at  liberty;  but  if  the  neutral  power 
allows  them  to  remain,  it  may  assign  them  a  place  of  resi- 
dence.1 

While  prisoners  remain  in  the  power  of  their  captors,  the 
state  may  employ  the  private  soldiers,  but  not  the  officers, 
in  useful  work,  provided  that  it  is  not  excessive  and  has 
"  no  connection  with  the  operations  of  the  war. "  It  may  be- 
come a  question  whether  these  words  prohibit  the  employ- 
ment of  prisoners  on  fortifications  and  other  military  works 
in  the  interior  of  the  enemy  country  and  at  a  distance  from 
the  scene  of  warfare.3  One  side  might  argue  that  such  works 
would  not  be  made  but  for  the  war,  and  must  therefore  be  con- 
nected with  it.  The  other  might  reply  that  the  actual  hostilities 
took  place  at  a  distance,  and  therefore  there  could  be  no  con- 
nection between  the  works  and  the  operations  of  the  war. 
On  the  principle  that  a  lax  rule  well  observed  is  better  than 
a  strict  rule  constantly  evaded,  the  second  interpretation 
should  be  preferred.  Prisoners  may  be  told  off  to  work  for 
other  branches  of  the  public  service  as  well  as  for  the  military 
authorities,  and  also  for  private  persons.  In  all  cases  they 
are  to  receive  pay,  which  is  to  be  expended  on  the  improve- 
ment of  their  position,  the  balance  being  handed  to  them  on 
their  release  with  deductions  for  their  maintenance.  It  often 
happens  that  the  treaty  of  peace  contains  stipulations  for  the 
repayment  by  each  side  to  the  other,  or  at  any  rate  by  the 

1  Holland,  The  Laws  of  War  on  Land,  p.  65  ;  Fifth  Hague  Convention  oj 
1907,  Article  13. 

2  Ibid.,  pp.  21,  22. 


402  THE  LAWS   OF   WAR 

vanquished  to  the  victor,  of  the  sum  spent  on  the  support  vt 
prisoners  of  war.  When  this  has  been  done,  no  deductions 
would  be  needed,  nor  would  they  be  required  in  the  case  of 
states  such  as  Great  Britain,  which  does  not  charge  the  main- 
tenance of  its  prisoners  against  their  earnings.1  When  the 
state  is  the  employer,  it  must  pay  the  wages  that  it  gives  to 
its  own  soldiers  for  similar  work.  When  the  prisoners  labor 
for  subordinate  public  bodies  or  private  individuals,  the  terms 
must  be  settled  by  agreement  between  the  military  authorities 
and  the  employers.  Though  officers  cannot  be  set  to  task- 
work by  their  captors,  they  are  not  left  without  pecuniary 
resources.  They  must  receive  the  same  pay  as  officers  of  cor- 
responding rank  in  the  country  where  they  are  detained,  and 
the  am  out  so  expended  must  be  refunded  by  their  own  govern- 
ment at  the  end  of  the  war.  Prisoners  of  war  are  to  have  full 
liberty  of  worship.  Presents  and  relief  in  kind  for  them  are  to 
be  admitted  untaxed  and  to  be  carried  by  state  railways  free  of 
charge.  Their  correspondence  is  to  be  exempt  from  postal 
charges,  not  only  in  the  belligerent  countries,  but  in  all  neu- 
tral states  through  which  it  may  pass ;  and  whatever  privi- 
leges in  the  matter  of  wills  are  given  to  soldiers  of  the  national 
army  must  be  given  to  them  also.  At  the  Hague  Conference 
of  1899  it  was  agreed  that  representatives  of  legally  consti- 
tuted societies  for  giving  aid  and  comfort  to  prisoners  of  war 
were  to  receive  every  facility  consistent  with  military  exi- 
gencies for  distributing  relief  in  the  various  prison-camps 
and  places  of  internment.  Moreover,  each  belligerent  was  to 
establish  an  information  bureau  in  its  territory,  charged  with 
the  duty  of  keeping  a  full  record  of  each  prisoner  from  the 
moment  of  his  capture  to  the  moment  of  his  death  or  release. 
In  1907  it  was  added  that  these  returns  should  be  sent  to  the 
government  of  the  other  belligerent  after  the  conclusion  of 
peace.  The  bureaus  were  also  to  reply  to  enquiries  about  the 
prisoners,  and  to  gather  together  and  forward  to  those  con- 

1  Holland,  The  Laws  of  War  on  Land,  p.  22. 


WITH   REGARD   TO   ENEMY  PERSONS  403 

cerned  all  personal  effects,  letters,  and  valuables  found  on  the 
field  of  battle  or  left  by  prisoners  who  had  died,  escaped,  or 
departed  by  reason  of  exchange  or  release  on  parole.1  Pro- 
fessor Takahashi  gives  in  part  II,  chapter  II,  of  his  Interna- 
tional Law  Applied  to  the  Russo-Japanese  War,  an  interesting 
and  often  most  pathetic  record  of  the  thorough  way  in  which 
this  work  was  done  by  a  careful  and  humane  belligerent  in  a 
great  struggle. 

The  rules  we  have  just  set  forth,  if  properly  carried  out 
in  practice,  secure  for  prisoners  of  war  a  treatment  far  better 
than  was  customary  in  previous  ages,  though  they  do  not 
remove  all  possibility  of  hardship.  Captured  foes  may  have 
to  undergo  long  marches  with  little  food  and  indifferent 
shelter.  A  commander,  whose  own  men  are  on  short  rations, 
cannot  be  expected  to  feed  his  prisoners  liberally ;  nor  can  a 
ragged  band  of  victors  find  warm  clothing  for  the  adver- 
saries they  have  taken.  If  they  are  permanently  unable  to 
maintain  them,  they  should  release  them,  as  the  Boers  did 
again  and  again  during  the  latter  part  of  their  struggle 
against  Great  Britain  in  1899-1902.  War  is  in  its  nature 
cruel,  and  all  humanity  can  do  is  to  deprive  it  of  unnecessary 
horrors.  The  Hague  Regulations  as  to  captives  marked  a  great 
advance  towards  this  end,  and  scarcely  had  they  been  drafted 
in  1899,  when  Great  Britain  went  beyond  them  in  the  Boer 
War,  and  organized  sports  and  schools  for  the  benefit  of  her 
prisoners  interned  in  Ceylon  and  St.  Helena.  Three  or 
four  years  later  Japan  followed  the  British  example,  and 
is  said  to  have  imported  special  cooks  to  prepare  European 
food  for  her  Russian  prisoners.  It  may  be  hoped  that 
similar  advances  will  take  place  in  other  departments  of 
warfare. 

1  For  the  treatment  of  prisoners  as  described  in  the  text,  see  Higgins,  The 
Hague  Peace  Conferences,  pp.  220-233  ;  Whittuck,  International  Documents, 
pp.  130-134 ;  Scott,  The  Hague  Peace  Conferences,  vol.  II,  pp.  379-387  ;  Sup- 
plement to  the  American  Journal  of  International  Law,  vol.  II,  pp.  98-105 ; 
or  any  other  publication  that  gives  the  text  of  the  Hague  Regulations. 


404  THE  LAWS   OF   WAS, 

§165 

When  ancient  and  modern  warfare  are  compared,  it  is  not 
in  the  treatment  of  prisoners  only  that  the  latter  shows  to 
great  advantage.  In  these  days 

Provision  is  made  for  tending  the  sick  and  wounded, 

whereas  we  hear   little   of  wounded  in  the  battles   of  an- 
tiquity, when  the   usual  lot    of   enemies   left 

The  care  of  the  *        J 

sick,  wounded,       helpless  on  the  field  was  to  be  first  plundered 

and  shipwrecked.  ,      ,  ,  „.     ,         -T  .    ,  . 

and  then  killed.  No  special  organization  ap- 
pears to  have  been  provided  for  their  relief  till  1190,  when, 
at  the  great  siege  of  Acre  during  the  Third  Crusade,  the 
order  of  Teutonic  Knights  was  founded  to  tend  them.  Then 
for  ages  the  task  of  caring  for  the  sick  and  wounded  was 
left  to  private  and  generally  ecclesiastical  benevolence.  But 
in  the  seventeenth  century  states  began  to  send  into  the  field 
along  with  their  armies  a  small  number  of  surgeons  and 
chaplains,  and  a  few  field-hospitals ;  and  since  then  much 
progress  has  been  made  in  this  department  of  army  organi- 
zation. In  modern  wars  state  provision  has  been  supple- 
mented by  private  effort ;  and  in  some  cases  neutral  societies 
and  individuals  have  given  aid  from  motives  of  humanity. 
At  last  in  1864  humanitarian  arrangements  of  an  interna- 
tional character  were  made.  In  that  year  the  Swiss  Gov- 
ernment, moved  thereto  by  the  terrible  account  of  M. 
Dunant,  who  had  seen  the  sufferings  of  the  sick  and 
wounded  in  the  campaign  of  Solferino,  called  together  a 
Conference  of  twelve  states  at  Geneva.  The  result  was 
a  Convention  which  gradually  obtained  the  adhesion  of 
practically  all  the  powers  of  the  civilized  world.  It  pro- 
tected the  sick  and  wounded  from  violence,  and  provided 
that  all  persons  and  things  connected  with  the  care  of  them 
should  enjoy  exemption,  as  far  as  possible,  from  the  severi- 
ties of  warfare.  It  represented  an  enormous  advance,  though 
its  provisions  were  by  no  means  complete.  An  attempt  to 


WITH   REGARD   TO   ENEMY   PERSONS  405 

remedy  some  of  its  deficiencies  and  extend  it  to  naval  war 
was  made  in  1868 ;  but  the  articles  drawn  up  in  that  year 
were  never  ratified.  The  Hague  Conference  of  1899  pro- 
duced a  Convention  for  the  Adaptation  of  the  Principles 
of  the  Geneva  Convention  to  Maritime  Warfare.  It  also 
proclaimed  in  its  Regulations  for  the  conduct  of  war  on 
land  that  "the  obligations  of  belligerents  with  regard  to 
the  sick  and  wounded  are  governed  by  the  Geneva  Conven- 
tion of  the  22d  of  August,  1864,  subject  to  any  modifications 
which  may  be  introduced  into  it." l  The  expected  modifica- 
tions were  made  in  1906,  when  the  representatives  of  thirty- 
seven  powers  met  at  Geneva,  and  produced  a  new,  more 
effective,  and  more  elaborate  Geneva  Convention.  The 
Hague  Conference  of  the  following  year  repeated  the 
declaration  of  its  predecessor  as  to  the  obligations  of  bel- 
ligerents towards  the  sick  and  wounded  in  land  warfare, 
with  the  difference  that  it  spoke  of  "  the  Geneva  Conven- 
tion "  instead  of  dating  and  defining  it,  and  alluding  to 
possible  modifications.2  The  Geneva  Convention  referred  to 
is  that  of  1906,  and  therefore  all  powers  accept  it  who  accept 
the  military  code  drawn  up  by  the  Second  Peace  Conference. 
The  Conference  revised  and  improved  the  Convention  of 
1899,  which  extended  the  principles  of  the  Geneva  Con- 
vention to  war  at  sea.  Its  labors  covered  the  whole  field 
of  hostilities ;  and  in  the  remarks  that  follow  we  shall  en- 
deavor to  give  a  brief  summary  of  their  results. 

We  will  begin  with  war  on  land.  Sick  and  wounded  com- 
batants are  to  be  cared  for  by  the  belligerent  in  whose  power 
they  are,  without  distinction  of  side  or  nationality.  If  they 
fall  into  the  enemy's  hands,  they  are  his  prisoners ;  but 
various  mitigations  of  their  lot  as  such  are  suggested,  rather 
than  made  obligatory,  among  them  being  a  repatriation  of 
the  injured  when  they  are  fit  for  removal,  or  their  internment 
in  a  neutral  state  with  the  latter's  consent.  A  belligerent 

i  See  Article  21  of  1899.  2  See  Article  21  of  1907. 


406  THE  LAWS  OP  WAR 

who  is  compelled  to  abandon  his  invalids  to  the  enemy  should 
leave  with  them  such  of  his  medical  personnel  and  material 
as  he  is  able  to  spare.  Military  authorities  may  ask  the 
civilian  inhabitants  of  the  scene  of  warfare  to  assist  under 
direction  and  supervision  in  the  care  of  the  wounded  and 
sick  of  the  armies,  and  may  grant  special  immunities  to  those 
who  respond  to  the  appeal.  Victorious  commanders  must 
protect  those  left  on  the  field  from  pillage  or  other  mal- 
treatment. They  are  bound,  further,  to  arrange  for  the  care- 
ful examination  of  the  enemy's  dead,  and  to  send  their  military 
identification  marks  to  the  authorities  of  their  country  or 
army.  Each  belligerent  is  to  collect  all  articles  of  personal 
use,  valuables,  and  letters  found  on  the  bodies  of  dead  foes, 
whether  they  perished  on  the  battlefield  or  in  his  hospitals. 
He  is  then  to  forward  these  things  to  the  authorities  of  the 
enemy's  country,  for  transmission  to  those  interested.  In 
addition  he  must  send  lists  of  the  sick  and  wounded  who 
have  been  collected  by  him.  All  belligerents  are  not  only 
to  refrain  from  attacking,  but  also  to  protect,  all  authorized 
organizations  for  rendering  aid,  whether,  like  field-hospitals, 
they  accompany  the  armies,  or  are  stationary,  like  base  hos- 
pitals ;  but  if  they  are  made  use  of  to  commit  acts  harmful  to 
the  enemy,  their  immunity  comes  to  an  end.  The  medical, 
nursing,  and  administrative  staff  of  the  organizations  for 
the  relief  of  the  sick  and  wounded  have  similar  privileges, 
and  hold  them  under  similar  conditions.  Neither  they,  nor 
the  guards  told  off  to  protect  hospitals  and  ambulances,  may 
be  made  prisoners  of  war.  Chaplains  have  the  same  exemp- 
tion. Voluntary  aid  societies  of  a  belligerent  state  must  be 
recognized  and  authorized  by  their  own  government  before 
they  can  share  the  immunities  just  described ;  and  neutral 
aid  societies  require  two  authorizations,  one  from  their  own 
state  and  one  from  the  belligerent  to  whose  forces  they  pro- 
pose to  attach  themselves.  The  latter  state  must  also  notify 
its  enemies  that  it  means  to  make  use  of  their  assistance. 
Should  the  personnel  of  any  of  these  organizations,  public  or 


WITH  KEGAKD  TO   ENEMY  PERSONS  407 

private,  fall  into  the  hands  of  the  other  side,  they  must  con- 
tinue to  carry  on  their  duties ;  but  when  their  assistance  is 
no  longer  necessary,  they  are  to  be  sent  back  along  with 
their  private  property  to  their  army  or  their  country.  While 
they  are  serving  under  the  enemy's  control,  he  must  give 
them  the  same  pay  and  allowances  as  are  granted  to  persons 
holding  similar  rank  in  his  own  army.  The  enemy  may  use 
for  the  treatment  of  the  sick  and  wounded  the  material  of 
the  field-hospitals  and  mobile  organizations  that  fall  into  his 
hands,  but  must  restore  what  remains  under  the  conditions 
laid  down  for  the  restoration  of  the  medical  personnel.  The 
buildings  and  material  of  fixed  establishments  may  not  be 
devoted  to  other  purposes  while  they  are  needed  for  the  care 
of  the  patients.  But  urgent  military  necessity  may  override 
this  rule,  provided  that  the  military  commander  who  has 
captured  and  has  control  of  the  establishments  makes  other 
arrangements  for  the  care  of  the  sick  and  wounded  under 
treatment  therein.  The  material  of  voluntary  aid  societies 
found  in  such  buildings  is  exempt  from  confiscation  as  being 
private  property,  but  is  subject,  like  other  private  property 
in  occupied  districts,  to  the  right  of  requisition.1  Convoys 
of  sick  and  wounded  in  course  of  conveyance  are  put  on  the 
same  footing  as  the  field-hospitals  and  similar  organizations, 
which  are  called  in  the  Convention  "  mobile  medical  units." 
But  they  may  be  broken  up  under  stress  of  military  necessity, 
provided  that  the  commander  who  takes  this  step  provides 
for  the  care  of  the  patients. 

The  distinctive  sign  of  the  humanitarian  service  we  are 
engaged  in  considering  is  a  red  cross  on  a  white  ground. 
Turkey,  however,  uses  a  red  crescent,  and  Persia,  the  lion 
and  red  sun  ;  but  both  powers  recognize  the  duty  of  re- 
specting the  red  cross.  The  emblem  is  to  be  worn  as  a 
badge  on  the  left  arm  of  the  personnel,  affixed  to  the  ve- 
hicles and  other  material  in  use,  and  flown  as  a  flag  over 
the  medical  units  and  other  establishments  that  are  entitled 

180. 


408  THE   LAWS   OF   WAR 

under  the  Convention  to  respect  and  protection.  The 
Ked  Cross  flag  must  be  accompanied  by  the  flag  of  the 
belligerent  to  whose  forces  the  units  or  establishments  be- 
long, except  when  they  have  fallen  into  the  enemy's  hands, 
when  the  Red  Cross  alone  is  shown.  No  neutral  flag  is 
allowed,  even  though  the  ambulance  or  hospital  belongs  to  a 
neutral  aid  society.  The  duty  of  carrying  out  the  provi- 
sions of  the  Convention,  and  applying  its  principles  to  cases 
not  specifically  provided  for  in  it,  is  laid  on  the  command- 
ers-in-chief  of  the  belligerent  armies.  The  signatory  powers 
are  bound  to  arrange  for  the  instruction  of  their  troops,  and 
especially  the  protected  personnel,  in  the  provisions  of  the 
Convention,  and  undertake  further  to  bring  them  to  the 
notice  of  the  civil  population.1 

A  neutral  state  is  free  to  authorize  the  passage  over  its 
territory  of  sick  and  wounded  belonging  to  the  belligerent 
armies ;  but  neither  personnel  nor  material  of  war  must  be 
carried  with  them.  It  must  guard  any  of  the  sufferers  who 
may  be  committed  to  its  care,  so  as  to  prevent  them  from 
taking  part  again  in  the  operations  of  the  war;  and  the  same 
duty  devolves  on  it  with  regard  to  those,  if  any,  who  belong 
to  the  side  opposed  to  the  army  that  sends  the  convoy. 
These  rules  with  regard  to  neutral  powers  are  taken,  not 
from  the  Geneva  Convention,  but  from  the  fifth  of  the  Con- 
ventions of  the  Hague  Conference  of  1907,  which  adds  that 
the  Geneva  Convention  applies  to  sick  and  wounded  interned 
in  neutral  territory.2 

We  now  come  to  the  provisions  made  for  the  care  of  the 
sick  and  wounded  in  warfare  at  sea.  We  have  already  seen 
that  they  are  governed  by  the  Convention  on  the  subject 

1  For  the  text  of  the  Geneva  Convention  of  1906,  with  illuminating  com- 
ments, see  Holland,  Laws  of  War  on  Land,  pp.  27-40, 116-120,  and  Higgins, 
The  Hague  Peace  Conferences,  pp.  18-38. 

2  Holland,  Laws  of  War  on  Land,  pp.  65,  66  ;  Higgins,  The  Hague  Peace 
Conferences,  pp.  284,  292,  293  ;  Whittuck,  International  Documents,   pp. 
146,  147  ;  Scott,  The  Hague  Peace  Conferences,  vol.  II,  pp.  406-499 ;  Supple' 
ment  to  the  American  Journal  of  International  Law,  vol.  II,  pp.  120-122. 


WITH   REGARD   TO   ENEMY  PERSONS  409 

made  by  the  Second  Hague  Conference  in  1907,  which  was  a 
repetition,  with  many  improvements  and  extensions,  of  the 
similar  Convention  negotiated  at  the  Conference  of  1899. 
It  recognized  three  kinds  of  hospital  ships,  all  of  which  are 
to  be  respected,  and  held  free  from  capture  and  from  the 
restrictions  imposed  on  warships  in  neutral  ports,  on  the  ful- 
filment of  certain  conditions  the  nature  of  which  will  appear 
as  we  proceed.  The  first  kind  consists  of  ships  constructed 
or  adapted  by  states,  solely  with  the  view  of  aiding  the 
wounded,  sick,  and  shipwrecked.  These,  with  their  boats, 
which  share  their  immunities,  are  to  be  painted  white,  with 
a  horizontal  band  of  green,  and  to  fly  the  Red  Cross  Geneva 
flag  along  with  their  national  flag.  The  second  kind  con- 
sists of  ships  equipped  wholly,  or  in  part,  at  the  expense  of 
private  individuals,  or  officially  recognized  relief  societies 
of  belligerent  nationality.  They  and  their  boats  are  to  be 
painted  white,  with  a  horizontal  band  of  red,  and  to  fly  the 
Geneva  flag  along  with  their  national  flag.  The  third  kind 
consists  of  ships  equipped  wholly  or  in  part  at  the  cost  of 
private  individuals  or  officially  recognized  relief  societies 
of  neutral  nationality.  They  and  their  boats  are  to  be 
painted  in  the  same  way  as  the  second  class ;  but  they  are 
to  fly,  in  addition  to  the  Geneva  flag  and  their  national  flag, 
the  flag  of  the  belligerent  under  whose  control  they  are 
placed.  All  hospital  ships  must  be  attached  to  one  or  other 
of  the  opposing  fleets ;  and  before  they  are  employed  their 
names  must  be  sent  by  the  power  they  serve  to  its  adversary. 
The  hospital  ships  fitted  out  by  private  individuals  or  socie- 
ties of  belligerent  nationality  must  have  a  commission  in  the 
shape  of  a  document  from  their  government  setting  forth 
that  the  vessels  have  been  under  official  control  while  fitting 
out  and  on  final  departure.  The  hospital  ships  fitted  out 
by  private  individuals  or  societies  of  neutral  nationality 
must  be  placed  under  the  control  of  one  of  the  belligerents 
with  the  previous  consent  of  their  own  government  and  the 
authorization  of  the  belligerent  government.  But  though 


410  THE   LAWS   OF   WAR 

private  hospital  ships  are  thus,  like  public  hospital  ships, 
subject  to  the  direction  of  the  naval  commanders,  and  un- 
able to  wander  from  fleet  to  fleet  at  the  will  of  their  owners, 
they  are  to  assist  the  wounded,  sick,  and  shipwrecked,  with- 
out distinction  of  nationality,  and  the  same  obligation  is  laid 
on  their  public  compeers. 

No  hospital  ship  must  hamper  the  movements  of  the  com- 
batants. During  and  after  an  engagement  all  of  them  act 
at  their  own  risk  and  peril.  The  belligerents  have  the  right 
of  control  over  them,  even  to  the  extent  of  searching  them, 
ordering  them  off,  making  them  take  a  certain  course,  and 
putting  a  commissioner  on  board.  They  may  detain  for  a 
time  the  hospital  ship  of  an  enemy,  if  the  necessities  of  war- 
fare require  such  an  extreme  step  to  be  taken,  and  when  it 
is  taken,  the  ship  must  haul  down  the  national  flag  of  the 
belligerent  to  whose  fleet  it  is  attached.  The  question  how 
best  to  secure  at  night  for  hospital  ships  the  immunities 
to  which  they  are  entitled  is  very  difficult.  It  is  obvious 
that  the  display  of  a  light  by  any  of  them  might  betray  to 
the  enemy  the  whereabouts  of  a  squadron  advancing  to  the 
attack,  or  in  hiding,  or  endeavoring  to  slip  away  in  the  dark- 
ness. The  same  remark  applies  to  any  kind  of  luminous  paint. 
The  Conference  decided  that  no  measure  that  might  be  sug- 
gested for  making  plain  in  the  night  the  special  painting  of 
hospital  ships  should  be  adopted  without  the  assent  of  the 
belligerent  whom  they  were  accompanying.  It  is  to  be  pre- 
sumed that  no  commander  would  allow  them  to  jeopardize  the 
success  of  an  important  nocturnal  enterprise.  The  sick-bays 
of  warships  cannot  be  protected  from  the  effects  of  shot  or 
shell  fired  from  a  distance  at  the  ship  of  which  they  form 
a  part;  but  it  is  provided  that,  if  a  fight  takes  place  on 
board,  they  are  to  be  respected  and  spared  as  far  as  possible. 
Their  comparatively  small  immunities  vanish,  together  with 
the  large  immunities  of  hospital  ships,  if  either  are  used  to 
commit  acts  harmful  to  the  enemy.  It  is,  however,  expressly 
stated  that  the  presence  of  wireless  telegraphy  apparatus  on 


WITS   REGARD   TO   ENEMY   PERSONS  411 

board,  and  the  arming  of  the  Red  Cross  staff  for  the  mainten- 
ance of  order  and  the  defence  of  their  patients,  are  not  to 
be  reckoned  among  the  acts  in  question.  If  the  humane 
work  provided  for  by  the  Convention  is  to  go  on,  it  is  highly 
desirable  that  naval  commanders  should  construe  strictly  the 
rule  of  no  participation,  direct  or  indirect,  in  hostilities.  The 
temptation  to  use  a  hospital  ship  as  a  scout  or  a  despatch 
boat  must  be  very  strong,  but  it  should  be  firmly  resisted. 
The  Russian  hospital  ship  Orel,  called  in  the  Japanese  offi- 
cial documents  the  Aryol,  was  captured  during  the  battle 
of  Tsushima  and  confiscated  as  prize  of  war  because  she 
had  carried  an  order  from  Admiral  Roshestvenski  to  one 
of  his  vessels  during  the  outward  voyage  of  the  Baltic  Fleet, 
and  had  been  used  less  than  a  week  before  the  battle  as  a 
place  of  reception  for  the  master  and  some  of  the  crew  of  the 
British  steamer  Oldhamia,  which  had  been  captured  by  the 
Russian  cruiser  Oleg.1 

If  neutral  merchantmen,  yachts,  or  small  craft  rescue  sick, 
wounded,  or  shipwrecked  men,  whether  of  their  own  initia- 
tive or  because  they  have  been  asked  to  do  so  by  a  bellig- 
erent officer,  they  cannot  be  captured  for  having  such  persons 
on  board,  though  they  remain  liable  to  seizure  for  any  ordi- 
nary offences,  such  as  carrying  contraband  or  breaking 
blockade,  which  they  may  have  committed. 

Turning  from  hospital  ships  to  the  patients,  staff,  and  ma- 
terial they  carry,  we  find  that  all  combatants  and  other  per- 
sons officially  attached  to  fleets  or  armies  are  to  be  taken  on 
board  and  tended  when  sick  or  wounded  without  regard,  to 
their  nationality.  If  a  warship  is  captured,  or  a  hospital 
ship  is  seized  for  acts  harmful  to  the  enemy,  the  religious, 
medical,  and  hospital  personnel  are  not  to  be  made  prisoners 
of  war ;  but  they  must  continue  to  discharge  their  duties  while 
necessary,  and  when  they  leave  with  the  permission  of  the 
commander-in-chief,  they  may  take  away  with  them  their 

1Takahashi,  International  Law  Applied  to  the  Russo-Japanese  War, 
pp.  620-625. 


412  THE   LAWS   OF   WAR 

surgical  instruments  and  such  other  objects  as  are  their  own 
private  property.  While  they  remain,  they  are  to  receive 
the  same  pay  and  allowances  as  are  granted  to  persons  of 
similar  rank  in  the  navy  that  detains  them.  Their  patients 
are  prisoners.  The  captor  may  keep  them,  or  send  them  to 
a  port  of  his  own  country,  to  a  neutral  port,  or  even  to  an 
enemy  port.  They  cannot  be  landed  at  a  neutral  port  with- 
out the  consent  of  the  government  of  the  neutral  country, 
which  will  generally  make  special  arrangements  with  the  bellig- 
erent government  as  to  their  treatment.  But  in  default  of  any 
agreement,  the  neutral  state  is  bound  to  prevent  the  prisoners 
from  taking  part  in  the  war  again,  and  the  state  to  which  they 
belong  is  bound  to  bear  the  expenses  of  their  internment.  Pris- 
oners landed  by  their  captor  in  a  port  of  their  own  country  must 
not  serve  again  while  the  war  lasts.  The  rules  as  to  search- 
ing for  the  sick  and  wounded  after  an  engagement,  the 
due  performance  of  the  rite  of  burial,  the  exchange  by 
the  belligerents  of  military  identification  marks  found  on 
the  dead  and  lists  of  the  sick  and  wounded  picked  up 
on  the  field,  the  sending  by  each  belligerent  to  the  other 
of  the  personal  trinkets  and  letters  that  have  come  into 
his  possession,  and  the  forwarding  of  information  as  to 
the  internments,  admissions  to  hospital,  and  deaths  among 
the  enemy's  sick  and  wounded  in  his  hands,  are  the  same 
as  those  of  the  Geneva  Convention,  except  that  the  ship- 
wrecked are  added  to  the  sick  and  wounded  in  the  re- 
citals of  those  to  whom  succor  is  to  be  given.  Com- 
manders-in-chief  at  sea  have  the  same  humanitarian  duties 
laid  on  them  as  those  on  land,  and  the  signatory  powers 
the  same  obligation  to  instruct  their  naval  forces  in  the 
provisions  of  the  Convention  and  bring  them  to  the  notice 
of  their  people.  Turkey  and  Persia  have  made  the  same 
reservations  as  to  the  use  of  the  red  crescent,  and  the  lion 
and  red  sun  respectively,  instead  of  the  red  cross.  And 
lastly  a  solution  has  been  found  of  a  difficulty  that  baffled 
the  Hague  Conference  of  1899.  It  is  impossible  to  go  into 


WITH   REGARD   TO   ENEMY  PERSONS  413 

the  details  of  it  here.1  All  that  can  be  done  is  to  state 
briefly  the  conclusion  reached  after  much  discussion  at  the 
two  Hague  Conferences  and  in  the  press.  It  will  be  remem- 
bered that  the  Convention  we  are  considering  proclaims  the 
immunity  from  capture  of  neutral  private  vessels  that  take 
on  board  sick,  wounded,  or  shipwrecked  combatants.  So  far 
there  was  universal  agreement.  But  the  question  of  subse- 
quent treatment  immediately  arose.  On  the  one  hand  it  was 
argued  that  by  coming  under  the  neutral  flag  these  people 
were  withdrawn  from  the  operations  of  warfare,  and, 
therefore,  ought  not  to  be  given  up  to  their  enemies  as  pris- 
oners or  restored  to  their  friends  to  fight  again  on  recovery, 
but  interned  on  neutral  territory  till  the  end  of  the  war. 
On  the  other  hand,  it  was  declared  that  the  right  of 
search  possessed  by  belligerents  carried  with  it  a  right  to 
make  prisoners  of  all  the  sick,  wounded,  or  shipwrecked 
members  of  the  enemy's  fighting  services  that  might  be  found 
on  board  the  neutral  vessels  searched  ;  and  the  alleged  im- 
possibility of  restraining  officers  from  seizing  an  important 
commander  on  the  other  side  if  they  found  him  on  board  a 
neutral  vessel  was  put  forward  as  a  reason  for  allowing  what 
could  not  in  any  case  be  prevented.  In  the  end  the  latter 
view  prevailed  at  the  Hague  Conference  of  1907,  in  spite  of 
the  opposition  of  the  British  representatives.  The  Conven- 
tion on  the  subject  not  only  declared  that  a  belligerent  war- 
ship might  demand  the  surrender  of  any  sick,  wounded,  or 
shipwrecked  combatants  found  on  board  military  hospital- 
ships,  or  hospital-ships  belonging  to  relief  societies  or  pri- 
vate individuals,  but  also  added  that  it  had  the  same  right 
with  regard  to  private  neutral  merchantmen,  yachts,  or 
other  boats  that  had  responded  to  the  call  of  humanity  and 
cared  for  the  injured  or  drowning.  Since  neutral  warships 

1  They  can  be  found  in  Higgins,  The  Hague  Peace  Conferences,  pp.  387-390 ; 
Lawrence,  War  and  Neutrality  in  the  Far  East,  2d  ed.,  pp.  71-75  ;  Report  of 
M.  Renault  given  in  Deuxieme  Conference  Internationale  de  la  Patz,  vol.  I, 
p.  75  ;  and  Westlake,  International  Laic,  part  II,  pp.  276-278. 


414  THE  LAWS   OP   WAR 

cannot  be  searched,  this  rule  does  not  apply  to  them.  It 
was,  however,  agreed  that  if  such  persons  as  we  are  discussing 
were  received  on  board  they  must  not  be  allowed  to  take  any 
further  part  in  the  war.1  Great  Britain  accepted  the  article 
containing  these  rules  with  the  proviso  that  she  understood 
it  to  refer  "  only  to  the  case  of  combatants  rescued  during 
or  after  a  naval  engagement  in  which  they  have  taken 
part."2 

§166 

The  last  point  to  be  noted  with  regard  to  combatants  is 

that 

Certain  means  of  destruction  are  forbidden. 

It  is  now  held  that  the  object  of  warlike  operations  is  not 
to  wreak  vengeance  on  the  enemy  or  gratify  personal  ani- 
The  inhibition  mosity  against  him,  but  to  destroy  his  power  of 
of  certain  means  resistance  and  induce  him  to  make  terms  as 

of  destruction.  _^ 

soon  as  possible.  Consequently  any  applications 
of  force  that  inflict  more  pain  and  suffering  than  is  necessary 
in  order  to  attain  this  end  are  forbidden  by  modern  Interna- 
tional Law.  An  ordinary  bullet,  for  instance,  will  disable  an 
arm,  and  render  its  possessor  useless  as  a  fighting  man,  just 
as  well  as  an  explosive  bullet,  or  a  scrap  of  iron  or  glass, 
which  inflict  a  jagged  wound  very  difficult  to  heal.  The 
use  of  such  missiles  is  therefore  prohibited;  and  the  principle 
that  condemns  them  is  applied  in  other  directions  also.  A 
feeling  against  treachery  is  the  base  of  further  prohibitions. 
All  the  forbidden  methods  of  destruction  will  be  discussed  in 
the  chapter  on  The  Agents  and  Instruments  of  Warfare. 

1  For  the  text  of  the  Hague  Convention  for  the  Adaptation  of  the  Princi- 
ples of  the  General   Convention  to  Maritime   War,    with  comments,   see 
Higgins,  The  Hague  Peace  Conferences,  pp.  358-391.     For  the  text  alone,  see 
Whittuck,  International  Documents,  pp.  173-182  ;   Scott,   TJie  Hague  Peace 
Conferences,  vol.  II,  pp.  446-462  ;   Supplement  to  the  American  Journal  of 
International  Law,  vol.  II,  pp.  153-167. 

2  British  Parliamentary  Papers,  Miscellaneous,  No.  6  (1908),  p.  148. 


WITH  REGARD   TO   ENEMY   PERSONS  415 

§167 

We  have  now  to  sketch  the  usages  of  war  with  regard  to 
the  persons  of  non-combatants.  We  have  already  seen  that 
till  the  distinction  between  combatants  and  The  gradual  smell- 
non-combatants  was  clearly  and  definitely  em-  coSon"? non- 
bodied  in  the  laws  of  war  in  the  latter  half  combatants, 
of  the  seventeenth  century,  the  unarmed  inhabitants  of  an 
invaded  country  were  exposed  to  shameful  indignities,  and 
sometimes  even  to  slaughter,  though  in  Christian  Europe  it 
was  not  considered  right  to  reduce  them  to  slavery.  But 
it  must  be  remembered  that  the  change  to  more  humane 
methods  did  not  take  place  in  a  moment  without  previous 
hint  or  warning.  It  was  a  matter  of  gradual  growth.  We 
find  in  ancient  and  mediaeval  warfare  instances  of  humanity 
towards  non-combatants  which  increase  in  number  as  time 
goes  on,  though  occasionally  there  is  a  period  of  distinct 
retrogression,  such  as  the  terrible  Thirty  Years  War,  which 
was,  however,  followed  by  seventy  years  of  rapid  progress. 
When  Henry  V  of  England  invaded  France  in.  1415,  he 
forbade  violence  to  the  peaceful  population  and  insults  to 
women,  and  severely  punished  the  perpetrators  of  such  out- 
rages, whereas  less  than  a  century  before,  the  track  of  the 
armies  of  Edward  III  was  marked  by  a  broad  line  of  fire 
and  slaughter.  The  famous  Chevalier  Bayard  was  remark- 
able for  his  humanity  to  the  inhabitants  of  invaded  districts; 
and  when  the  Earl  of  Essex  took  Cadiz  in  1596  he  permitted 
the  inhabitants  to  ransom  themselves  in  a  body  and  depart 
in  English  ships  to  a  place  of  safety  before  the  pillage  began. 
They  had,  however,  to  be  content  to  escape  with  nothing  but 
the  clothes  they  wore,  saving  and  excepting  some  ancient 
gentlewomen  who  were  allowed  to  put  on  two  or  three  best 
gowns  apiece.  After  the  departure  of  the  inhabitants,  the 
place  was  sacked  and  destroyed,  with  the  exception  of  the 
churches  and  religious  houses.  Such  proceedings  would 
now  be  denounced  as  barbarous,  but  then  the  English  were 


416  THE  LAWS   OF  WAR 

praised  for  their  "heroical  liberality."  And  certainly  their 
conduct  was  an  improvement  upon  the  methods  of  coast 
warfare  in  vogue  at  the  time  and  previously,  when  to  descend 
upon  the  shores  of  an  enemy,  surprise  and  sack  his  seaports, 
hang  the  peaceful  inhabitants  over  their  own  doorsteps,  and 
set  fire  to  the  place  on  departing  from  it,  were  regarded  as 
ordinary  incidents  of  hostilities.1  The  beginning  of  the 
eighteenth  century  saw  the  general  recognition  of  the  rule 
that  non-combatants  were  not  to  be  subjected  to  slaughter 
or  outrage.  But  nevertheless  many  severe  practices  for 
which  no  reasonable  justification  could  be  pleaded  still  re- 
mained as  survivals  of  the  older  order.  Thus  the  inhabit- 
ants of  invaded  districts  were  often  compelled  to  swear 
fidelity  and  allegiance  to  the  invading  sovereign,  and  some- 
times even  to  renounce  their  allegiance  to  their  lawful  rulers, 
and  furnish  recruits  for  the  forces  of  the  invaders.  The 
treatment  accorded  to  non-combatants  according  to  the  best 
rules  and  practices  of  modern  warfare  may  be  described 
under  the  heads  given  in  the  sections  that  follow.  Most  of 
the  rules  contained  therein  are  taken  from  the  Acts  of  the 
two  Hague  Conferences  and  other  law-making  international 
documents;  but  some  are  generalizations  from  usage,  and  as 
such  more  liable  to  be  doubted  and  contested. 

§168 

The  first  rule  we  lay  down  with  regard  to  this  portion  of 
our  subject  is  that 

Non-combatants  are  exempt  from  personal  injury,  except  in  so 
far  as  it  may  occur  incidentally  in  the  course  of  the  laivful 
operations  of  warfare,  or  be  inflicted  as  a  punishment  for 
offences  committed  against  the  invaders. 

Family  honor  and  the  lives  of  individuals  are  always  to  be 
respected.     Yet  if  civilians  travelling  in  a  train  containing 

1  Bernard,  Growth  of  the  Law  of  War  in  the  Oxford  Essays  for  1856,  pp. 
97-99,  130-133. 


WITH   REGARD  TO  ENEMY  PERSONS  417 

soldiers  are  shot  in  an  attack  upon  it  by  the  enemy,  or  if 
women,  children,  and  unarmed  men  are  killed  in  the  course 
of  a  bombardment,  or  during  the  capture  of  a  The  exemption  of 
village  situated  upon  a  battlefield,  a  regrettable  j^K^T 
incident  has  taken  place,  but  no  violation  of  the  sonai  injury, 
laws  of  war  has  been  committed.  Had  the  guns  of  the 
besiegers  been  deliberately  turned  upon  the  dwelling  houses 
of  the  bombarded  town,  or  had  an  open  and  undefended  vil- 
lage been  fired  into,  the  persons  responsible  for  such  pro- 
ceedings would  have  been  justly  accused  of  illegal  barbarity. 
A  custom  is  springing  up  of  allowing  women  and  children 
to  leave  a  besieged  place  before  the  commencement  of  a 
bombardment,  but  it  is  not  sufficiently  general  to  have 
acquired  binding  force.  During  the  siege  of  Strasburg  in 
1870  the  Germans  on  two  occasions  allowed  non-combatants 
to  pass  through  their  lines  into  a  place  of  safety;  but  a 
few  months  later  they  declined  to  permit  "  useless  mouths  " 
to  depart  from  Paris  before  the  bombardment  commenced, 
because  it  was  the  intention  of  their  commanders  to  reduce 
the  city  by  famine  rather  than  capture  it  by  fighting.  All 
that  is  rendered  obligatory  on  an  enemy  commander  by  the 
Hague  code  for  land  warfare 1  and  the  Hague  Convention 
concerning  bombardments  by  naval  forces  2  is  that  he  should 
give  notice  to  the  local  authorities  before  commencing  his 
bombardment,  except  when  military  exigencies,  such  as  a 
contemplated  assault,  make  such  warning  impracticable. 

The  peaceful  inhabitants  of  an  invaded  country,  who  are 
content  to  go  about  their  ordinary  avocations  and  submit  to 
the  lawful  demands  of  the  invaders,  have  a  right  to  protection. 
The  exercise  of  their  religion  should  be  freely  allowed,  and 
the  law  of  the  land  with  regard  to  private  rights  should  be 
permitted  to  remain  in  force.  By  Article  23  of  the  Hague 
code  for  land  warfare  a  belligerent  is  forbidden  to  compel 
subjects  of  the  other  side  to  take  part  in  "the  operations  of 
war  directed  against  their  own  country,"  even  if  they  were  in 
1  See  Article  26.  2  See  Article  6. 


418  THE  LAWS  OF   WAR 

his  service  before  the  outbreak  of  hostilities.  The  full 
meaning  of  the  phrase  "  operations  of  war  "  is  by  no  means 
clear;  and  there  has  been  a  good  deal  of  controversy  as 
to  whether  the  practice  of  impressing  inhabitants  of  an 
invaded  district  to  act  as  guides  to  the  advancing  columns  is 
really  prohibited.  The  words  just  quoted  seem  wide  enough 
to  cover  such  an  act  of  compulsion.  But  the  main  argument 
of  those  who  desire  the  cessation  of  a  severity  common 
enough  hitherto  is  that  Article  44  condemns  it.  The  words 
are,  "  Any  compulsion  on  the  population  of  occupied  terri- 
tory to  furnish  information  about  the  army  of  the  other 
belligerent,  or  about  his  means  of  defence,  is  forbidden,"  and 
the  most  natural  meaning  to  put  on  them  is  that  they  specify 
a  particular  instance  of  what  is  already  prohibited  in  general 
terms  by  Article  23.  Because  of  the  dangers  deemed  to  lurk 
in  this  particularity  Germany  entered  a  reservation  against  the 
article,1  and  not  because  she  shared  the  desire  of  Austria- 
Hungary  and  Russia  to  be  free  to  employ  impressed  guides.2 
Yet  in  the  admirable  report  of  the  French  delegation  this 
article  is  praised  on  the  ground  that  it  solemnly  prohibits  so 
odious  a  practice.3  The  emphatic  rejection  of  an  Austro- 
Hungarian  amendment  which  would  have  allowed  it,  and 
indeed  the  whole  course  of  the  discussion,  show  that  the 
practice  was  prohibited;4  but  we  shall  find  the  prohibition  in 
the  general  statements  of  Article  23  and  Article  52  rather 
than  in  the  particular  assertions  of  Article  44. 

Though  the  inhabitants  of  invaded  districts  are  to  be  free 
from  compulsion  to  take  any  part  in  the  operations  of  war 
against  their  own  country,  they  may  be  forced  to  render 
services  for  the  needs  of  the  army  of  invasion.  The  line 

1  German  White  Book,  Dec.  6,  1907,  p.  7 ;  Deuxieme  Conference  Inter- 
nationale de  la  Paix,  Acts  et  Documents,  vol.  I,  p.  86. 

2  Acts  et  Documents,  vol.  I,  pp.  99-101 ;  British  Parliamentary  Papers, 
Miscellaneous,  No.  4  (1908),  pp.  102-104. 

3  French  Yellow  Book,  Deuxieme  Conference  Internationale  de  la  Paix, 
p.  107. 

4  Ibid.,  p.  76  ;  Higgins,  The  Hague  Peace  Conferences,  pp.  266-270. 


WITH  REGARD   TO   ENEMY   PERSONS  419 

between  the  two  may  sometimes  be  very  thin;  and  no  doubt 
controversy  will  arise  over  doubtful  cases.  But  the  under- 
lying principle  is  clear.  To  drive  a  herd  of  bullocks  into 
a  slaughter  pen  is  a  very  different  thing  from  driving  an 
ammunition  wagon  into  a  field  of  conflict.  To  share  house 
and  home  with  a  few  soldiers  of  the  enemy  is  far  less  obnox- 
ious to  patriotic  feeling  than  to  be  compelled  with  a  revolver 
at  one's  head  to  lead  a  hostile  division  over  a  mountain  path  to 
the  flank  of  the  defending  army.  Pillage  is  forbidden,  and 
private  property  must  be  respected.  The  population  may 
not  be  called  upon  to  take  the  oath  of  allegiance  to  the  hos- 
tile power;  neither  may  any  general  penalty,  pecuniary  or 
otherwise,  be  inflicted  on  it  because  of  acts  of  individuals  for 
which  it  cannot  be  regarded  as  collectively  responsible.  But 
the  protection  and  good  treatment  accorded  to  non-comba- 
tants is  conditional  on  good  behavior  from  them.  They 
must  not  perform  acts  of  war  against  the  invaders  while 
purporting  to  live  under  them  as  peaceful  civilians.  An 
inhabitant  of  an  occupied  district  who  cuts  off  stragglers, 
kills  sentinels,  or  gives  information  to  the  commanders  of  his 
country's  armies,  may  be,  and  probably  is,  an  ardent  and  de- 
voted patriot;  but  nevertheless  the  usages  of  war  condemn 
him  to  death,  and  the  safety  of  the  invaders  may  demand  his 
execution.  There  is  nothing  to  this  effect  in  the  Hague 
Code.  It  was  one  of  those  questions  on  which  agreement 
proved  impossible  at  Brussels  in  1874,  and  has  remained  im- 
possible ever  since.  All  that  could  be  settled  in  1907  was 
that  such  matters  were  to  be  ruled  by  custom,  the  laws  of 
humanity,  and  the  requirements  of  the  public  conscience.1 
But  there  can  be  no  doubt  as  to  accepted  usage.  Every 
citizen  of  an  invaded  province  can  be  either  a  combatant  or 
a  non-combatant.  If  he  elects  to  fight,  he  must  join  the 
armed  forces  of  his  country,  and  will  be  entitled  to  the 
treatment  accorded  to  soldiers.  If  he  prefers  to  be  a  peace- 
ful civilian,  and  go  about  his  ordinary  business,  the  enemy 
1  See  the  preamble  to  the  fourth  Hague  Convention  of  1907. 


420  THE  LAWS   OF   WAR 

will  be  bound  to  leave  him  unmolested  and  protect  him  from 
outrage.  But  if  he  varies  peaceful  pursuits  with  occasional 
acts  of  hostility,  he  does  so  at  the  peril  of  his  life.1 

§  169 

The  next  point  to  be  noticed  with  regard  to  the  treatment 
of  non-combatants  is  that 

The  inhabitants  of  captured  towns  are  not  to  be  abandoned  to 
the  violence  of  the  victorious  soldiery. 

Such  atrocities  as  the  sack  of  Magdeburg  in  1631,  when 
thirty  thousand  people  —  men,  women,  and  children  —  were 
The  cessation  of  massacred  with  every  circumstance  of  cruelty 
the  barbarities  by  Tilly's  troops  amidst  the  wreck  of  their 

inflicted  upon  the       .  .  , 

inhabitants  of  cap-  burning  homes,  would  be  impossible  to-day  in 
warfare  between  civilized  states.  But  scenes 
not  greatly  inferior  in  horror  have  occurred  since.  During 
the  Peninsula  War,  the  successful  assaults  on  Cuidad  Rodrigo, 
Badajos,  and  San  Sebastian  were  followed  by  terrible  ex- 
cesses perpetrated  by  a  maddened  soldiery  upon  the  defence- 
less inhabitants.  The  French  in  1837  sacked  Constantine 
in  Algeria  for  three  days.  The  invariable  excuse  put  forth 
on  such  occasions  was  that  the  troops  could  not  be  restrained. 
But  whatever  truth  there  may  have  been  in  it  ages  ago,  it  is 
no  longer  applicable  to  armies  recruited  from  the  populations 
of  the  leading  nations  of  the  world,  who  pride  themselves 
upon  their  humanity  and  enlightenment.  The  only  con- 
spicuous instance  to  the  contrary  in  recent  years  occurred  in 
1894, when  at  the  capture  of  Port  Arthur  the  Japanese  troops, 
maddened  by  the  sight  of  the  quivering  bodies  of  their  com- 
patriots tortured  to  death  by  the  retreating  Chinese,  gave 
themselves  up  for  a  time  to  indiscriminate  slaughter.  But 

1  For  the  Hague  Regulations  referred  to  in  this  section  see  Higgins,  The 
Hague  Peace  Conferences,  pp.  232-237,  244-249;  Whittuck,  International 
Documents,  pp.  43-45,  47-49;  Scott,  The  Hague  Peace  Conferences,  vol.  II, 
pp.  386-391,  394-399;  and  Supplement  to  the  American  Journal  of  Inter' 
national  Law,  vol.  II,  pp.  106-108,  112-115. 


WITH   REGARD   TO   ENEMY   PERSONS  421 

when  early  in  1905  the  soldiers  of  Japan  captured  Port 
Arthur  again,  they  showed  a  clemency  and  kindness  worthy 
of  the  highest  praise.  The  plea  that  the  assaulting  troops 
must  be  rewarded  for  their  exertions  by  the  plunder  of  the 
captured  place  is  simply  infamous,  and  as  ignorant  as  it  is 
evil.  Towns  are  now  defended  by  forts  and  earthworks 
erected  at  a  considerable  distance  from  the  houses.  There  is 
therefore  but  little  danger  of  the  rush  of  an  infuriated 
soldiery  into  the  streets  after  a  successful  assault.  In  the 
American  Civil  War,  for  example,  Richmond  fell  as  soon  as 
the  lines  of  Lee  were  pierced  at  Petersburg  ;  and  before  the 
soldiers  of  the  Union  could  reach  the  city  the  Confederates 
had  time  to  evacuate  it,  after  setting  fire  to  the  government 
stores  and  thus  causing  the  destruction  that  their  victorious 
foes  endeavored  to  prevent.  And  while  both  the  temptations 
to  excess  and  the  opportunities  for  it  are  less  than  before,  the 
sentiments  that  have  caused  the  general  improvement  in 
the  laws  of  war  have  not  left  untouched  the  department  of 
them  that  deals  with  sieges  and  assaults.  The  Brussels 
Conference  of  1874  began  the  process  of  making  'mercy  ob- 
ligatory by  laying  down  that  captured  towns  were  not  to 
be  plundered,  and  Article  28  of  the  Hague  Regulations  of 
1907  completed  it  by  forbidding  the  "  pillage  of  a  town  or 
place  even  when  taken  by  assault."  1  All  the  rules  we  have 
already  given  with  respect  to  the  protection  of  the  peaceful 
population  from  outrage  and  molestation  apply  as  a  matter  of 
course  to  its  inhabitants. 


The  last  point  to  be  noticed  in  connection  with  non-com- 
batants is  that 

Special  protection  is  granted  to  those  who  tend  the  sick  and 
wounded. 

This  was  the  work  of  the  Geneva  Convention  of  1864  ;  and 

we  have   already  seen   how  its   provisions  have  developed 

1  Higgins,  The  Hague  Peace  Conferences,  pp.  237,  275. 


422      LAWS   OF   WAR   WITH   REGARD   TO   ENEMY  PERSONS 

into  an  organized  system  of   protection  and  immunity  for 

all  the  personnel  of  recognized  religious,  medical,  and  nursing 

services.1     The  Convention   contained  further 

The  special  pro- 
tection granted  to    stipulations  in  favor  of  inhabitants  of  an  occupied 

those  who  tend  ,..  ,  -it  •    i  i  11 

the  sick  and  district  who  received  the  sick  and  wounded 
into  their  houses  and  tended  them  there.  No 
troops  were  to  be  quartered  on  them,  and  they  were  to  be 
indulgently  treated  in  the  matter  of  war  contributions.  But 
the  grant  of  these  indulgences  as  a  right  was  found  to  be 
unsatisfactory  in  practice  ;  and  the  revised  Geneva  Conven- 
tion of  1906  leaves  an  appeal  to  the  charitable  zeal  of  the  in- 
habitants to  the  discretion  of  the  military  authorities,  and 
allows  them  to  fix  the  immunities  to  be  granted  in  return 
for  a  satisfactory  response.2 

1  See  §  165.          2  Higgins,  The  Hague  Peace  Conferences,  pp.  22,  37. 


CHAPTER   IV 

THE  LAWS  OP  WAR  WITH  REGARD  TO  ENEMY  PROPERTY 

ON  LAND 


UNDER  the  above  head  we  will  first  consider  the  case  of 
Enemy  property  found  within  a  state  at  the  outbreak  of  war. 

Such  property  may  belong  to  the  enemy  state  or  to  its  sub- 
jects.    The  first  case  is  exceedingly  unlikely  to  arise  except 
perhaps  with  regard  to  an  ambassador's  resi-  Pro  ert  ofthe 
dence,  which  is  sometimes  owned  by  the  state  enemy  government 

•  found  within  a 

that  sends  him.    But  as  a  general  rule  a  state  does  state  at  the  out- 

,     •       •  ,  •  ,  -,  break  of  war. 

not  in  its  corporate  capacity  own  real  property 
in  its  neighbors  territories,  and  if  it  should  possess  personal 
property  so  situated,  it  would  take  care  to  withdraw  any  of 
its  goods  and  chattels  that  were  in  the  power  of  a  probable 
foe  as  soon  as  relations  became  so  strained  that  war  was  likely 
to  break  out.  It  is,  however,  just  possible  that  the  com- 
mencement of  hostilities  might  find  public  ships,  or  treasure, 
arms  and  military  stores  belonging  to  one  belligerent,  still 
remaining  within  the  territories  of  the  other.  In  that  case 
they  would  undoubtedly  be  confiscated;  but  such  things  as 
books,  pictures,  statues,  curios,  and  ancient  manuscripts, 
would  probably  be  regarded  as  exempt  from  the  operations 
of  warfare  and  restored  accordingly.  And  it  is  improbable 
that  any  civilized  state  would  confiscate  a  house  owned  by  its 
enemy,  if  it  was  acquired  for  the  residence  of  his  diplomatic 
representative,  and  used  for  that  purpose  in  time  of  peace. 

423 


424  THE  LAWS   OF  WAR 

§  172 

At  the  outbreak  of  war  a  state  frequently  discovers  within 
its  borders  a  considerable  amount  of  private  property  belong- 
ing to  subjects  of  the  enemy.  In  dealing  with  such  cases 
we  shall  find  it  convenient  to  give  separate  consideration 
to  real  and  personal  property,  and  to  take  first  the  case  of 
Real  ro  ert  rea^  Pr°Perty  or  immovables.  The  mediaeval 
of  enemy  subjects  ruie  was  to  confiscate  such  property  as  soon  as 

found  within  a  ,....,  •  i 

state  at  the  out-  hostilities  began,  and  not  till  the  commence- 
ment of  the  eighteenth  century  do  we  find 
germs  of  the  contrary  practice.  By  the  middle  of  the  cen- 
tury Vattel 1  was  able  to  limit  the  rights  of  a  belligerent  to  the 
sequestration  during  the  war  of  the  income  derived  from 
such  lands  and  houses  within  his  territory  as  belonged  to 
subjects  of  the  hostile  state.  During  the  latter  half  of  the 
century  general  custom  followed  this  rule,  but  towards  the  close 
of  it  we  find  in  treaties  of  peace  provisions  for  the  removal 
of  the  sequestrations,  a  sure  sign  that  even  the  less  severe 
mode  of  dealing  with  the  property  in  question  was  beginning 
to  be  condemned  by  enlightened  opinion.  The  growth  of 
the  practice  of  allowing  enemy  subjects  resident  in  a  country 
to  continue  there  unmolested  during  the  war 2  carried  with 
it  permission  for  them  to  retain  their  property ;  and  in 
modern  times  the  real  property  of  enemy  subjects  has 
not  been  interfered  with  by  the  belligerent  states  in  whose 
territory  it  was  situated,  even  when  the  owners  resided  in 
their  own  or  neutral  states,  the  one  exception  being  an  Act  of 
the  Confederate  Congress  passed  in  1861  for  the  appropria- 
tion of  all  enemy  property  found  within  the  Confederacy, 
except  public  stocks  and  securities.3  This  proceeding  was 
deemed  unwarrantably  severe ;  and  contrary  usage  has  been 
so  uniform  that  we  may  safely  regard  the  old  right  to  con- 
fiscate or  sequestrate  as  having  become  obsolete  through 

1  Droit  des  Gens,  bk.  Ill,  §  76.  2  See  §  160. 

*  Halleck,  International  Law  (Baker's  4th  ed.),  vol.  I,  p.  689,  note. 


WITH  REGARD  TO  ENEMY  PROPERTY  ON  LAND   425 

disuse.  But  the  rule  that  an  alien  enemy  is  under  a  dis- 
ability to  sue  unless  he  is  domiciled  in  the  territory  of  the 
state  would  render  difficult  the  collection  of  rents  and 
profits.  It  might,  however,  be  managed  through  an  agent  free 
from  disability  ;  and  the  difficulty  is  not  likely  to  last  much 
longer,  if  the  Hague  Regulation  that  forbids  a  belligerent 
"  to  declare  extinguished,  suspended,  or  unenforceable  in  a 
court  of  law  the  rights  and  rights  of  action  of  the  nationals 
of  the  adverse  party " 1  is  enforced  by  legislation  in  the 
states  that  still  retain  the  doctrine  that  an  enemy  has  no 
standing  in  their  courts. 

§  173 

Personal  property  or  movables  remained  subject  to  con- 
fiscation if  found  in  an  enemy's  country  at  the  outbreak  of 
war  for  some  time  after  mitigations  of  the  old  Personal  pr0perty 
severity  began  to  be  applied  in  the  case  of  real  of  enemy  subjects 

rr.  .  found  within  a 

property.  But  we  find  indications  of  a  change  state  at  the  out- 
of  sentiment  in  numerous  treaties  negotiated 
during  the  eighteenth  century,  whereby  each  of  the  contract- 
ing parties  agreed  to  grant  to  subjects  of  the  other  a  fixed 
period  for  the  withdrawal  of  mercantile  property,  should  war 
break  out  between  them.  These  stipulations  have  been 
followed  by  others  extending  up  to  the  present  time.  They 
mark  a  considerable  advance ;  but  some  of  them  refer  only  to 
movables  connected  with  commerce,  and  leave  other  kinds  of 
personal  property  unprotected.  Moreover,  till  the  end  of 
the  Napoleonic  wars  the  mediaeval  rule  of  confiscation  was 
often  applied  in  the  absence  of  special  stipulations  overrid- 
ing it.  But  it  was  too  severe  for  public  opinion ;  and  in 
the  treaties  of  the  time  there  are  numerous  provisions  for 
mutual  restoration  at  the  conclusion  of  peace.2  Since  the 
treaties  of  Vienna  of  1815  the  only  instance  of  confiscation 

1  See  Article  23  (h)  of  the  Hague  Regulations  for  War  on  Land.  For  a  discus- 
sion as  to  its  meaning  see  §  143.          2  Hall,  International  Law,  5th  ed.,  p.  439. 


426  THE   LAWS   OF   WAR 

is  to  be  found  in  the  Act  of  the  Confederate  Congress  alluded 
to  in  the  previous  section. 

This  being  the  state  of  the  facts,  what  are  we  to  say  as 
to  the  state  of  the  law  ?  The  doctrine  of  the  British  and 
American  courts,  that  war  renders  confiscable  enemy  prop- 
erty found  within  the  state  at  the  outbreak  of  war,  but  does 
not  ipso  facto  confiscate  it,  was  regarded  as  good  in  Interna- 
tional Law  at  the  beginning  of  the  last  century.  It  was 
laid  down  by  the  Supreme  Court  in  the  case  of  Brown,  v.  the 
United  States,1  when  it  was  further  decided  that  by  the  Con- 
stitution an  Act  of  Congress  was  necessary  to  effect  confis- 
cation or  authorize  the  President  to  confiscate,  whereas  in 
Great  Britain  a  Royal  Proclamation  was  sufficient.  But  it 
may  be  questioned  whether  the  old  right  is  still  in  existence. 
For  more  than  a  century  it  has  not  been  acted  on,  save  in  the 
one  instance  of  1861 ;  and  the  circumstances  under  which 
this  solitary  return  to  former  severity  took  place  deprive  it 
of  much  weight  as  a  precedent  for  international  action. 
What  is  done  by  the  weaker  party  in  a  bitter  civil  war  is 
hardly  a  guide  for  ordinary  belligerents  in  a  struggle  between 
independent  states.  If  it  is  right  to  argue  from  the  practice 
of  nations  to  the  law  of  nations,  we  may  join  the  great 
majority  of  continental  publicists 2  in  the  assertion  that  the 
International  Law  of  our  own  time  does  not  permit  the 
confiscation  of  the  private  property  of  enemy  subjects  found 
on  the  land  territory  of  the  state  at  the  outbreak  of  war. 
The  right  to  seize  and  appropriate  is  obsolete,  except  perhaps 
with  regard  to  objects  directly  useful  in  war,  which  might  be 
detained  lest  they  should  reach  the  enemy  and  swell  his  re- 
sources. In  order  to  meet  such  a  danger,  it  might  be  wise 
to  retain  in  the  constitutional  law  of  the  state  a  power  of 
sequestration,  to  be  exercised  on  rare  occasions  and  with 

1  Cranch,  Reports  of  U.  8.  Supreme  Court,  vol.  VIII,  p.  110 ;  Scott,  Cases 
on  International  Law,  pp.  486-493. 

2  For  a  summary  of  their  views  see  Latifi,  Effects  of  War  on  Property, 
p.  40. 


WITH  REGARD  TO  ENEMY  PROPERTY  ON  LAND   427 

regard  to  special  kinds  of  property.  But  no  power  of  con- 
fiscation is  needed;  nor  would  its  exercise  be  endured  to- 
day, when  capital  is  cosmopolitan  and  there  are  few  civilized 
countries  without  a  considerable  population  of  resident 
foreigners.  International  Law  should  allow,  under  careful 
limitations,  a  right  to  sequestrate,  but  nothing  more. 

An  attempt  was  made  early  in  the  nineteenth  century  by 
the  British  Court  of  King's  Bench  to  enforce  in  the  case 
of  private  debts  a  rule  of  non-confiscation,  and  thus  give  them 
a  more  privileged  position  than  other  kinds  of  personal  prop- 
erty. But  the  claim  is  not  considered  by  most  writers  to 
have  been  sound  when  it  was  made,  and  would  certainly  fail 
of  recognition  at  the  present  time.  But  while  no  difference 
would  be  made  to-day  between  the  various  kinds  of  person- 
alty, the  mild  rule  for  which  Lord  Ellenborough,  the  then 
Chief  Justice,  contended  in  the  case  of  debts  in  1817  would 
probably  be  applied  generally.1  In  states  that  retain  the  doc- 
trine that  an  enemy  has  no  persona  standi  in  judicio  he  can- 
not sue  for  his  debt  during  the  war,  but  the  right  to  do  so 
revives  at  the  conclusion  of  peace.  In  the  United  States  a 
statute  of  limitations  does  not  run  during  war  against  those 
who  have  no  right  of  access  to  the  courts  ;  but  British  law 
seems  to  have  adopted  the  contrary  view.2  Domestic  legisla- 
tion of  the  kind  referred  to  at  the  end  of  the  last  section 
would  remove  all  these  difficulties. 

§174 

There  is  one  kind  of  personal  and  incorporeal  property 
which  is  clearly  exempt   from  confiscation.      There  can  be 
no  doubt  that  long  usage,  and  a  due  regard  for  The  special  case 
self-interest,  compel  belligerent  states  to  refrain  enem^subjwtfin 
from  confiscating  the  stock  held  by  subjects  of  **  PubUc  debt- 
the  enemy  in  their  public  loans,  and  to  pay  the  covenanted 

1  Maule  and  Selwyn,  King's  Bench  Reports,  vol.  VI,  p.  92 ;  Scott,  Cases  on 
International  Law,  pp.  496-499. 

2  Westlake,  International  Law,  part  II,  p.  49. 


428  THE  LAWS   OF   WAR 

interest  on  such  stock  during  the  continuance  of  the  war. 
The  question  came  up  for  discussion  during  the  famous  Sile- 
sian  Loan  Controversy1  between  Great  Britain  and  Prussia 
in  the  middle  of  the  eighteenth  century.  In  the  year  1752 
Frederick  the  Great  of  Prussia  confiscated  funds  due  to 
British  subjects  in  respect  of  a  loan  secured  upon  the  reve- 
nues of  Silesia.  The  money  had  been  originally  lent  to  the 
Emperor  Charles  VI ;  but  when  Silesia  was  ceded  to  Prussia 
in  1742  by  Maria  Theresa,  his  successor  in  the  Austrian 
dominions,  Frederick  agreed  to  take  upon  himself  all  the 
obligations  connected  with  the  loan.  Ten  years  after  he 
laid  hands  upon  the  property  of  the  British  stockholders, 
in  retaliation  for  the  capture  and  condemnation  by  Great 
Britain  of  neutral  Prussian  merchantmen  under  circum- 
stances deemed  unlawful  by  the  jurists  whom  he  consulted. 
The  British  Government  replied  to  their  arguments  in  a 
masterly  state  paper,  due  chiefly  to  the  pen  of  Murray,  the 
Solicitor-general,  who  was  afterwards  the  great  Lord  Mans- 
field. He  showed  that  war  itself  had  not  been  held  to 
justify  reclamations  on  the  public  debt,  and  argued  that  a 
lesser  injury,  if  injury  there  had  been,  could  not  give  just 
ground  for  so  unprecedented  a  severity.  By  almost  uni- 
versal consent  the  British  contention  was  triumphant.  Un- 
doubtedly Prussia  had  a  real  grievance  against  Great  Britain ; 
for  British  prize  courts  had  condemned  Prussian  vessels  car- 
rying materials  for  shipbuilding,  though  the  British  Minister 
for  Foreign  Affairs  had  declared  to  the  Prussian  envoy  that 
such  cargoes  would  not  be  regarded  as  contraband.2  The 
controversy  was  settled  in  1756  by  the  Treaty  of  West- 
minster, whereby  Prussia  agreed  to  remove  the  sequestra- 
tion placed  upon  the  Silesian  Loan,  and  Great  Britain 
covenanted  to  pay  an  indemnity  of  £ 20,000  for  the  benefit 
of  Prussian  subjects  who  had  suffered  wrongfully  by  her 
captures.  The  unbroken  practice  of  civilized  states  for 

aC.  de  Martens,  Causes  Celebres,  vol.  II,  pp.  1-87. 

a  Manning,  Law  of  Nations  (Amos's  ed.),  pp.  176,  176,  292-294. 


WITH   REGARD    TO   ENEMY   PROPERTY    ON   LAND       429 

generations  past  renders  the  principle  that  stock  in  the 
public  debt  held  by  enemy  subjects  should  be  exempt  from 
seizure,  an  undoubted  rule  of.  modern  International  Law. 
The  real  reason  for  the  rule  is  probably  to  be  sought 
rather  in  the  exigencies  of  public  credit  than  in  the  sanc- 
tities of  public  faith.  It  is  difficult  to  see  how  the  obliga- 
tions undertaken  by  a  state  with  regard  to  the  money  it  has 
borrowed  are  more  sacred  than  its  other  obligations  towards 
private  individuals.  But  there  is  no  difficulty  in  under- 
standing that  the  rate  of  interest  on  a  loan  which  might 
be  confiscated  in  the  event  of  war  between  the  borrowing 
country  and  the  country  of  the  lender  would  be  very  much 
higher  than  the  rate  on  an  unconfiscable  stock.  States  de- 
sire to  borrow  on  as  easy  terms  as  possible,  and  therefore 
they  are  glad  to  give  lenders  the  benefit  of  the  most  complete 
security. 

§  175 

Having  dealt  with  the  various  kinds  of  enemy  property 
found  within  a  belligerent  state  at  the  outbreak  of  war,  we 
now  pass  on  to  consider  the  treatment  to  be 

Booty. 

accorded   by   an    army   to   movables   and   im- 
movables under   its   control,  if   they  are   tainted   with  the 
enemy  character.     In  this  connection,  we  will  deal  first  with 

Booty, 

which  may  be  described  as  movables  taken  from  the  foe  on 
the  battlefield,  or  in  the  course  of  such  warlike  operations  on 
land  as  the  capture  of  a  camp  or  the  storming  of  a  fort. 
But  the  scope  of  this  definition  has  been  greatly  diminished 
by  the  Hague  Regulations  concerning  the  Laws  and  Customs 
of  War  on  Land.  The  fourteenth  article  declares  that  all 
valuables  and  objects  of  personal  use  found  on  battlefields 
are  to  come  into  the  custody  of  the  Information  Bureau l  and 
be  by  it  returned  to  those  interested ;  and  the  fourth  article 

.   »  See  §  164, 


430  THE  LAWS   OF   WAR 

lays  down  that  the  personal  belongings  of  prisoners,  save 
only  their  arms,  horses,  and  military  papers  remain  their 
property.1  That  these  limitations  are  not  counsels  of  perfec- 
tion, but  practicable  rules,  was  proved  by  Japan  in  her  war  of 
1904-1905  with  Russia,  when  she  sent  back  through  French 
diplomatic  and  consular  channels  over  a  million  articles,  in- 
cluding coins,  found  on  the  field,  or  left  by  deceased  prisoners 
of  war.2  This  took  place  under  the  Hague  code  of  1899  ; 
but  the  code  of  1907  now  in  force  differs  in  no  respect  from 
its  predecessor  in  the  provisions  that  bear  on  the  subject. 
By  the  strict  rules  of  International  Law  booty  belongs  to 
the  state  whose  soldiers  have  captured  it.  They  are  acting 
as  the  agents  and  instruments  of  their  government.  What 
they  do  is  done  by  its  authority,  and  what  they  acquire  is 
acquired  on  its  behalf.  War  gives  them  no  right  to  enrich 
themselves  at  the  expense  of  the  enemy.  The  spoil  they 
take  is  not  theirs  but  their  country's.  This  was  the  ancient 
Roman  theory,  and  it  is  the  theory  of  the  modern  law  of 
nations.  But  in  practice,  the  regard  paid  to  it  is  by  no  means 
as  strict  as  could  be  wished,  and  it  is  impossible  to  prevent 
the  appropriation  of  many  articles  taken  as  spoil  of  war. 
Recognizing  this,  the  laws  of  every  civilized  state  provide 
that  the  whole  or  a  part  of  the  captured  property  should 
be  given  to  the  captors  according  to  a  scale  drawn  up 
by  the  proper  authorities.  In  England  the  distribution 
of  booty  is  determined  by  the  Crown  under  the  advice 
of  the  Lords  of  the  Treasury.3  In  order  that  proprietary 
rights  in  booty  may  vest  in  the  state  whose  soldiers  capture 
it,  they  must  have  had  it  in  firm  possession  for  twenty-four 
hours.  If  it  is  recaptured  by  the  enemy  before  that  time,  it 
reverts  to  the  original  owners,  on  the  theory  that  they  have 
not  been  dispossessed  of  their  proprietary  rights  in  it.  Such 
state  property  as  arms,  stores,  and  munitions  of  war,  found 

1  Higgins,  The  Hague  Peace  Conferences,  pp.  221,  229. 

2  Takahashi,  International  Law  Applied  to  the  Russo-Japanese  War,  p.  121. 
8  Halleck,  International  Law  (Baker's  fourth  ed.),  vol.  II,  pp.  94,  95. 


WITH  REGARD  TO  ENEMY  PROPERTY  ON  LAND   431 

in  a  captured  camp  or  fort,  or  on  a  battlefield,  belongs  to  the 
government  of  the  victors. 

§  176 
We  have  next  to  investigate  the  important  subject  of 

Belligerent  Occupation. 

Much  light  will  be  thrown  upon  the  question  by  a  short 
historical  review  of  the  methods  followed  by  invading 
armies  when  dealing  with  property  in  the  dis- 

,     •     ,  i          ,  ••  T,     .  i  Invasions  histori- 

tricts  overrun  by  them.  It  is  not  to  be  sup-  ^  considered, 
posed  that  in  ancient  and  mediaeval  warfare 
property  would  be  spared  where  life  was  freely  taken. 
Accordingly  we  find  unlimited  plunder  and  destruction  the 
rule  not  only  in  classical  times,  but  also  in  periods  far  more 
nearly  approaching  our  own.  When  the  English  under 
Edward  III  landed  in  Normandy  in  1346,  they  spread  them- 
selves over  the  country,  burning  and  plundering  up  to  the 
very  gates  of  Paris.  The  French  invasions  of  Italy  at  the 
end  of  the  fifteenth  and  the  beginning  of  the  sixteenth  cen- 
turies were  undertaken  without  magazines  or  money.  The 
troops  lived  on  the  country,  which  they  ate  up  like  locusts. 
The  atrocities  of  the  Thirty  Years'  War  are  too  well  known 
to  need  description.  Even  Grotius  was  obliged  to  admit 
that  "  by  the  Law  of  Nations  .  .  .  any  one  in  a  regular  war 
may,  without  limit  or  measure,  take  and  appropriate  what 
belongs  to  the  enemy."1  But  when  he  endeavored  to  en- 
force temperamenta  belli,  he  argued  that  even  in  a  just  war 
men  should  not  capture  more  than  was  necessary  for  their 
own  safety,  unless  it  was  morally  due  to  them  either  as  a 
debt  or  by  way  of  punishment.  He  added  that  the  injured 
side,  if  it  abounds  in  wealth,  should  not  exact  the  utmost 
farthing,  and  spoke  with  approval  of  the  custom  of  sparing 
the  lands  of  cultivators  and  the  goods  of  merchants,  and  only 
taking  tribute  from  them.2  Rules  based  upon  the  notion 
1  De  Jure  Belli  ac  Pacts,  bk.  Ill,  ch.  vi,  2.  «  75^  bfc.  ni,  ch.  xiii. 


432  THE  LAWS   OF   WAR 

that  war  is  a  punishment  have  not  found  their  way  into 
International  Law ;  but  the  other  idea  of  Grotius  that  the 
invader  should  measure  his  acquisitions  by  his  necessities  was 
fruitful  of  good.  In  the  next  great  cycle  of  European  wars 
Marlborough  and  Eugene  and  their  French  opponents  kept 
strict  discipline  in  their  armies.  Requisitions  took  the  place 
of  indiscriminate  plunder,  and  the  avocations  of  peaceful 
life  went  on  amidst  the  movements  of  the  contending  forces. 
Yet  now  and  again  the  old  ferocity  broke  out,  though  on 
each  occasion  it  shocked  the  conscience  of  Europe.  For  in- 
stance, in  1688  the  Palatinate  was  devasted  amid  general  exe- 
cration by  the  order  of  Louis  XIV  and  his  minister,  Louvois ; 
and  in  1704  Marlborough  ordered  a  part  of  Bavaria  to  be 
laid  waste,  in  order  to  punish  the  Elector  for  adhering  to  the 
French  alliance  and  induce  him  to  quit  it.1 

But  though  measures  so  extreme  as  these  were  looked  on 
with  disfavor,  many  proceedings  which  we  should  now  deem 
indefensible  envoked  little  hostile  comment.  In  1715  the 
King  of  Denmark,  being  at  war  with  Sweden  and  having 
overrun  with  his  troops  the  Swedish  territories  of  Bemen  and 
Verdeu,  sold  them  to  the  Elector  of  Hanover,  thus  assuming 
to  himself  such  a  right  of  dominion  as,  according  to  modern 
usage,  could  spring  from  nothing  but  cession  or  completed 
conquest.  Later  still,  during  the  occupation  of  Saxony  by 
Frederick  the  Great  in  the  Seven  Years'  War,  recruits  were 
taken  by  force  for  the  Prussian  army  from  the  population  of 
the  occupied  kingdom.2  In  so  far  as  any  legal  justification 
for  such  proceedings  was  attempted,  they  were  defended  on 
the  theory  that  military  possession,  however  temporary,  was 
a  kind  of  conquest  and  gave  the  invader  full  proprietary 
rights.  The  practical  result  of  this  view  was  to  confer  on 
him  all  the  power  of  a  sovereign  without  a  sovereign's  re- 
sponsibility. Vattel,  writing  in  1758,  was  the  first  jurist  to 
challenge  the  theory  that  a  military  possessor  might  perform 

1  Bernard,  Growth  of  Laws  of  War,  pp.  101-104  ;  Hosack,  Law  of  Nations, 
pp.  260,  261.  2  Hall,  International  Law,  6th  ed.,  pp.  464,  465,  and  notes. 


WITH  REGARD  TO  ENEMY  PROPERTY  ON  LAND   433 

acts  of  sovereignty,  and  to  maintain  instead  that  the  rights 
of  the  original  sovereign  must  first  be  ousted  by  completed 
conquest,  or  resigned  by  a  definite  treaty.1  His  views 
gradually  found  favor  with  other  jurists  and  slowly  in- 
fluenced practice ;  but,  as  Professor  Oppenheim  remarks,  it 
was  not  till  the  end  of  the  nineteenth  century  that  they  were 
worked  out  in  all  their  consequences,  and  fully  embodied  in 
the  accepted  rules  of  land  warfare.2  Meanwhile  humanity 
and  enlightened  self-interest  combined  to  substitute  for 
plunder  a  right  to  requisition  from  the  inhabitants  things 
necessary  for  the  daily  needs  of  the  invading  army,  and  a 
right  to  levy  money  contributions  in  the  occupied  territory. 
But  humane  commanders  often  found  that  they  had  a  hard 
task  in  their  attempts  to  stop  pillage.  When  the  Duke  of 
Wellington  entered  the  south  of  France  in  1813  his  prohibi- 
tions of  plunder  and  license  were  often  disregarded.  He, 
therefore,  threatened  to  send  back  the  Spanish  troops  if  they 
persisted  in  attemps  to  retaliate  on  French  peasants  for  the 
havoc  wrought  in  Spain  by  the  armies  of  Napoleon.  With 
his  own  troops  he  was  still  more  severe.  He  sent  to -England 
under  arrest  several  officers  who  had  been  guilty  of  maraud- 
ing, and  hanged  private  soldiers  who  plundered  in  defiance 
of  his  orders.3 

The  last  century  witnessed  a  gradual  improvement  in  the 
behavior  of  civilized  armies  ;  but  undoubtedly  there  are  many 
men  of  bad  character  among  the  vast  masses  of  troops  mo- 
bilized for  modern  warfare.  There  has  been,  and  still  is,  need 
of  strict  discipline  if  proper  protection  is  to  be  accorded  to 
peaceful  populations,  and  even  the  right  of  levying  requi- 
sitions and  contributions  requires  to  be  surrounded  by  pre- 
cautions against  abuse.  The  general  feeling  in  favor  of  the 
more  definite  assertion  of  existing  restrictions  and  the  crea- 
tion of  fresh  safeguards  found  expression  in  the  various 

1  Droit  des  Gens,  bk.  HI,  §§  197,  198. 

2  International  Law,  vol  II,  pp.  168,  169. 
8  Napier,  Peninsula  War,  vol.  VI,  p.  268. 


434  THE  LAWS   OF   WAR 

military  codes  and  projects  of  international  regulation  that 
marked  the  latter  part  of  the  nineteenth  century.  Pillage 
was  prohibited  and  the  rights  of  the  invader  over  public 
and  private  property  were  limited  and  defined  in  the  In- 
structions of  1863  for  the  Government  of  Armies  of  the 
United  States  in  the  Field,  which  was  the  first  of  the  military 
codes,1  in  the  project  drawn  up  by  the  Brussels  Conference  of 
1874,2  and  in  the  rules  agreed  to  by  the  Institute  of  Inter- 
national Law  in  1$80.8  Then  in  1899  came  the  First  Hague 
Conference  with  its  great  law-making  Convention  concern- 
ing the  laws  and  customs  of  war  on  land,  and  the  appended 
series  of  Regulations.  In  1907  the  Second  Hague  Confer- 
ence issued  revised  Regulations,  and  these  may  now  be 
regarded  as  binding  between  civilized  states.  The  Inter- 
national Law  of  to-day  draws  a  sharp  distinction  between 
completed  conquest  and  belligerent  occupation.  The  former 
we  have  already  considered.4  It  implies  the  cessation  of  the 
struggle  and  the  establishment  of  a  new  political  order. 
With  the  rights  and  obligations  arising  out  of  it  the  laws  of 
war  have  no  concern.  But  with  the  proceedings  of  invading 
armies,  and  the  legal  position  of  the  military  occupant  they 
are  most  intimately  connected.  We  will  proceed  to  indicate 
what  they  prescribe  with  regard  to  these  matters,  using  the 
Hague  Regulations  of  1907  as  our  guide. 

§177 

The  Regulations  prohibit  as  applicable  to  all  warfare  on 
The  essential  land  the  destruction  or  seizure  of  the  enemy's 
STtol^o^upa-  property  unless  it  be  imperatively  demanded 
tion-  by  the  necessities  of  war,  the  attack  or  bom- 

bardment of  undefended  places,  and  the  pillage  of  a  place 
even  when  taken  by  assault.6  They  then  proceed  to  declare 

1  Davis,  Outlines  of  International  Law,  Appendix  A. 
8  Higgins,  The  Hague  Peace  Conferences,  pp.  273,  274,  278,  279. 
3  Tableau  General  de  L'Institut  de  Droit  International,  pp.  181-186. 
*  See  §§  49,  77.  6  gee  Articles  23,  26,  28. 


WITH   REGARD   TO   ENEMY  PROPERTY   ON   LAND       435 

that  "  territory  is  considered  to  be  occupied  when  it  is  actually 
placed  under  the  authority  of  the  hostile  army,"  and  that 
"  the  occupation  applies  only  to  the  territories  where  such 
authority  is  established  and  can  be  exercised." l  These  words 
might  be  more  explicit  with  advantage ;  but  when  they  are 
read  in  the  light  of  the  discussions  that  were  carried  on  at 
Brussels  in  1874  they  are  fairly  clear.  They  certainly  rule 
out  the  view  acted  on  by  the  Germans  in  their  invasion  of 
France  in  1870,  that  a  district  was  occupied  if  flying  col- 
umns, advanced  parties,  or  even  scouts  and  patrols,  marched 
through  it  either  without  resistance,  or  after  having  overcome 
the  resistance  of  the  regularly  organized  national  troops.2  In 
such  territory  the  authority  of  the  invaded  state  is  still  in 
existence,  and  has  not  been  superseded  by  that  of  the  hostile 
army.  Very  likely  this  will  happen  almost  immediately;  but 
till  it  has  happened  the  invader  has  not  gained  the  large 
rights  that  belong  to  a  military  occupant.  In  fact  occupa- 
tion on  land  is  analogous  to  blockade  at  sea ;  and  as 
blockades  are  not  recognized  unless  they  are  effective,  so 
occupation  must  rest  on  effective  control.  Its  rights  are 
founded  on  mere  force,  and  therefore  they  cannot  extend 
beyond  the  area  of  available  force.  But  the  force  need  not 
be  actually  on  the  spot.  The  country  embraced  within  the 
invader's  lines  may  be  very  extensive,  and  the  bulk  of  his 
troops  will,  of  course,  be  found  on  its  outer  edge  opposing 
the  armies  of  the  invaded  state.  Any  territory  covered  by 
the  front  of  the  invaders  should  be  held  to  be  occupied,  but 
not  territory  far  in  advance  of  their  main  bodies.  The  fact 
that  it  is  penetrated  here  and  there  by  scouts  and  advance 
guards  does  not  bring  it  under  firm  control,  and  therefore 
cannot  support  a  claim  to  have  deprived  the  invaded  state 
of  all  authority  therein.  But  the  rights  of  occupancy,  once 
acquired,  remain  until  the  occupier  is  completely  dispos- 
sessed. The  temporary  success  of  a  raid  or  a  popular  rising 

1  See  Article  42. 

3  British  Parliamentary  Papers,  Miscellaneous,  No.  1  (1875),  pp.  235-239. 


436  THE  LAWS   OF   WAB 

will  not  destroy  them  ;  but  if  an  insurrection  wins  back  and 
holds  the  disputed  territory,  it  is  absurd  to  argue,  as  do  some 
of  the  great  military  powers,  that  they  still  exist  because  the 
occuping  forces  have  not  been  driven  away  by  regular 
troops.  This  .is  one  of  the  questions  untouched  by  the 
Hague  Regulations,  and,  therefore,  left  by  the  preamble  of  the 
fourth  Convention  of  1907  to  usage,  humanity,  and  "  the  re- 
quirements of  the  public  conscience."  These  combine  to 
declare  that  rights  founded  on  force  expire  when  that  force 
is  overcome,  no  matter  what  agency  be  employed  in  over- 
coming it.  It  is  impossible  to  travel  with  safety  far  beyond 
the  statement  that  belligerent  occupatioa  implies,  first  firm 
possession,  so  that  the  occupying  power  has  the  country 
under  its  control  and  can  exercise  its  will  therein,  and 
secondly  a  continuance  of  the  war,  so  that  the  invader  has 
not  become  the  sovereign.  While  the  occupation  lasts,  the 
occupant  has  duties  as  well  as  rights.  He  must  substitute 
his  own  authority  for  that  of  the  state  he  has  dispossessed, 
maintain  order,  ensure  safety,  and  administer  the  laws  with 
such  alterations,  if  any,  as  he  may  deem  it  necessary  to  make 
by  virtue  of  his  military  supremacy.1 

§178 

We  will  now  proceed  to  discuss  the  rights  of  an  invader 

over  property  found  in  the  districts  occupied  by  him.     It 

will  be  convenient  to  distinguish  between  state 

Rights  over  state 

property  gained  property  and  private  property,  taking  first  in 
each  case  the  rules  that  relate  to  immovables, 
and  secondly  those  that  relate  to  movables. 

With  regard  to  immovables  belonging  to  the  invaded 
state,  the  occupying  belligerent  is  to  consider  itself  as  an 
administrator  and  usufructuary  only.2  That  is  to  say,  it 
may  use  the  public  lands,  buildings,  forests,  and  other  real 
estate,  and  may  take  all  the  rents  and  profits  arising  from 
them,  but  may  not  waste  or  destroy  the  things  themselves, 

1  Holland,  The  Laws  of  War  on  Land,  pp.  52,  63.         a  See  Article  65. 


WITH  REGARD   TO   ENEMY   PROPERTY   ON  LAND       437 

save  under  stress  of  the  most  urgent  military  necessity. 
Thus  the  troops  of  the  invader  may  be  quartered  in  public 
buildings,  his  administrative  services  may  utilize  them  for 
offices,  they  may  be  turned  into  hospitals  for  his  wounded, 
and  even  the  churches  may  be  taken  possession  of  for  pur- 
poses connected  with  the  war.  But  wanton  destruction  is 
regarded  as  an  act  of  barbarity  forbidden  by  the  rules  of 
civilized  warfare.  The  Hague  Regulations  expressly  forbid 
the  seizure  or  destruction  of  institutions  dedicated  to  public 
worship,  charity,  education,  science,  and  art.  Historical 
monuments  share  their  immunities,  which  include  protec- 
tion from  wilful  damage.1  The  rule  that  an  invader  ac- 
quires, not  the  ownership,  but  only  the  right  to  use  the 
public  immovables  found  by  him  in  the  occupied  territory, 
carries  with  it  as  a  necessary  consequence  the  further 
rule  that  he  may  not  sell  any  portion  of  the  state  domain 
that  he  succeeds  in  bringing  under  his  control.  He  may 
compel  the  tenants  to  pay  their  rents  into  his  military 
chest,  he  may  lop  the  forests  and  work  the  mines,  he 
may  appropriate  to  himself  all  ordinary  profits ;  but  he 
may  not  injure  or  destroy  the  corpus  of  the  property  in 
question,  nor  may  he  attempt  to  transfer  it.  Such  an 
attempt  was  made  in  1870  by  the  German  authori- 
ties with  regard  to  some  thousands  of  oaks  in  the  state  for- 
ests of  two  departments  of  France  then  under  German 
military  occupation.  As  the  trees  were  not  fit  for  cutting 
according  to  the  proper  practice  of  forestry,  the  act  was  an 
act  of  waste,  and  the  French  courts  ruled,  after  the  conclu- 
sion of  the  war  had  restored  their  authority  in  the  districts 
in  question,  that  the  buyers  of  the  oaks  had  no  legal  title.2 
With  regard  to  immovables  as  distinct  from  their  rents  and 
profits,  whatever  the  occupant  may  express  on  the  face  of  any 
document,  he  can  but  make  over  his  own  chance  of  retaining 

1  See  Article  56. 

2  Scott,  Cases  on  International  Law,  p.  674  note  ;  Westlake,  International 
Law,  part  II,  p.  106  and  note ;  Latifi,  Effects  of  War  on  Property,  p.  19. 


THE   LAWS   OF   WAR 

what  he  then  holds  by  the  sword.  Such  a  transaction  cannot 
be  valid  against  the  sovereign  of  the  country,  if  his  author- 
ity is  restored  during  or  after  the  war,  but  it  would  bind  the 
occupying  sovereign  if  he  afterwards  obtained  the  district 
by  cession  or  completed  conquest.  Purchase  during  the  war 
by  a  neutral  state  amounts  to  an  abandonment  of  neutrality, 
which  the  dispossessed  belligerent  may  lawfully  resent.  If 
the  excluded  sovereign  sells,  he  simply  parts  with  his  chance 
of  regaining  the  property ;  and  the  conveyance,  though  valid 
as  against  him,  would  have  no  force  to  bind  the  invading 
state  should  its  occupation  ripen  into  full  ownership.  Even 
the  right  of  user  of  the  occupant  is  subject  to  exceptions ; 
for  the  income  derived  from  lands  set  apart  for  the  support 
of  "establishments  devoted  to  religion,  charity,  education, 
art,  and  science  "  should  not  be  diverted  from  its  beneficent 
purposes  to  swell  the  resources  of  the  occupying  army.1 

With  certain  exceptions  which  will  be  stated  immediately, 
movables  belonging  to  the  invaded  state  may  be  appropriated 
by  the  invader.  Firm  possession  gives  him  a  title  to  the 
things  themselves,  and  not  merely  to  the  use  of  them.  This 
rule  applies  first  and  foremost  to  "  depots  of  arms,  means  of 
transport,  stores  and  supplies,  and  generally  all  movable 
property  belonging  to  the  state  which  may  be  used  for  mili- 
tary operations."  But  it  also  covers  "  the  cash,  funds,  and 
realizable  securities  "  of  the  government.2  The  exact  mean- 
ing of  the  ambiguous  term  "realizable  securities"  (valeurs 
exigibles)  has  been  much  discussed  among  jurists.3  Probably 
a  security  would  not  be  accounted  realizable  unless  it  were  ca- 
pable of  being  converted  into  money  as  it  existed  at  the  moment 
of  seizure.  The  occupant  may  collect  the  taxes,  dues,  and 
tolls  payable  to  the  state ;  but  he  must  make  the  proper  admin- 
istration of  the  occupied  territory  the  first  charge  on  the  funds 
so  obtained,4  and  should  employ  the  local  officials  if  they  are 

1  See  Article  56.  2  See  Article  53. 

8  Westlake,  International  Law,  part  II,  pp.  103,  104  and  note. 

*  See  Article  48. 


WITH    REGARD   TO   ENEMY   PROPERTY   ON   LAND       439 

willing  to  act.  Legal  documents  and  state  archives  ought  not 
to  be  seized  unless  they  bear  on  the  military  dispositions  of 
the  enemy,  or  justify  the  contentions  of  the  invader  as  to  the 
origin  and  conduct  of  the  war.  And  further,  works  of  art 
or  science,  and  historical  monuments,  are  exempt  not  only 
from  seizure,  but  also  from  wilful  damage.1  During  the 
wars  of  Revolutionary  and  Napoleonic  France  large  numbers 
of  valuable  pictures  and  statues  were  seized  by  the  French 
armies,  and  brought  home  to  enrich  the  collections  of  Paris. 
Many  more  were  given  up  as  part  of  the  price  of  peace  by 
states  who  were  overcome  in  war.2  But  in  1815  the  victori- 
ous allies  insisted  on  the  restitution  of  all  these  works  of  art 
to  the  cities  and  galleries  from  which  they  had  been  taken. 
They  held  that  they  were  undoing  a  great  wrong.  The 
captures,  so  they  argued,  were  void  ab  initio,  and  it  was  their 
business  when  they  had  overcome  the  wrongdoer  to  put  the 
true  owners  in  possession  again.3  In  reasoning  thus  they 
ignored  the  distinction  we  have  pointed  out  between  the 
two  modes  of  acquisition.  The  laws  of  war,  then  as  now, 
protected  the  contents  of  galleries  and  museums  f  roni  seizure 
by  invaders.  Such  of  them  as  were  taken  by  the  French 
during  their  belligerent  occupation  of  territories  that  they 
had  overrun  were  obtained  illegally,  and  the  allies  did  no 
more  than  put  the  legitimate  owners  in  possession  of  prop- 
erty that  had  never  ceased  to  be  theirs  in  law.  But  those 
that  had  been  made  over  by  treaty  were  held  by  a  good 
title.  It  is  absurd  to  argue  that  a  victorious  belligerent  may 
enforce  the  transfer  of  a  province,  but  not  a  picture,  or  that 
peace  may  be  purchased  by  an  indemnity  of  millions,  but  not 
by  marbles  and  mosaics.  To  take  away  from  France  what 
she  had  acquired  by  cession  was  no  act  of  police  jurisdiction, 
but  a  high-handed  proceeding  which  must  seek  its  justifica- 
tion in  considerations  of  public  policy.  If  the  welfare  of 

1  See  Article  66. 

2Fyfie,  Modern  Europe,  vol.  I,  pp.  117,  118,  132. 

8  Cf .  F.  von  Martens,  Nouveau  Becueil,  vol.  II,  p.  632. 


440  THE   LAWS   OF   WAR 

Europe  demanded  that  she  should  be  deprived  of  Belgium 
and  the  Rhenish  provinces,  it  might  also  demand  that  the 
galleries  of  the  Louvre  should  disgorge  the  accumulated 
glories  of  Western  art.  This  branch  of  the  question  must 
be  argued  on  political  and  ethical,  rather  than  on  jural 
grounds. 

§179 

We  now  come  to  the  rights  of  the  occupying  state  over 
private  property  in  the  occupied  districts.  Dealing  first 
with  immovables,  we  may  lay  down  that  as  a 
general  rule  they  are  held  to  be  incapable  of 
mmtary  occupa-  appropriation  by  an  invader.  They  are  bound 
up  with  the  territory.  The  profits  arising  from 
them  are  free  from  confiscation,  and  the  owners  are  to  be  pro- 
tected in  all  lawful  use  of  them.1  But  troops  may  be  quar- 
tered in  private  houses,  though  the  inhabitants  may  not  be 
ejected  from  their  homes  to  make  more  room  for  the  soldiery. 
Moreover,  the  needs  of  actual  conflict  may  justify  the  destruc- 
tion of  buildings  or  the  use  of  them  as  fortified  posts.  And 
if  non-combatants  fire  upon  the  invading  forces  from  their 
dwellings,  or  use  them  for  the  purpose  of  committing  other 
acts  of  unauthorized  hostility,  the  laws  of  war  give  to  the 
belligerent  who  suffers,  the  right  to  inflict  punishment  by  the 
destruction  of  the  property  in  question,  as  well  as  by  severi- 
ties against  the  persons  of  the  offenders.  In  warfare  between 
civilized  states  it  is  found  that,  as  a  rule,  nothing  worse  than 
temporary  and  severe  inconvenience  is  experienced  by  those 
of  the  inhabitants  of  occupied  districts  who  remain  in  their 
homes  and  live  peaceably.  They  are  able  to  take  some  care 
of  their  property,  and  can  generally  prevent  wanton  damage 
and  destruction  by  promptly  reporting  any  excesses  to  the 
officers  in  command.  But  those  who  abandon  their  dwellings 
and  take  to  flight  at  the  approach  of  the  enemy  are  likely  to 
find  on  their  return  little  but  the  mere  shell  remaining.  The 

1  See  Article  46. 


WITH   REGARD   TO   ENEMY   PROPERTY   ON   LAND       441 

houses  will  have  been  filled  with  soldiers  from  basement  to 
garret,  and  their  furniture  and  fittings  will  probably  have 
been  first  subjected  to  the  roughest  treatment  and  then  burnt 
for  firewood.  Unless  there  is  some  reason  to  anticipate  per- 
sonal violence,  the  best  policy  for  the  inhabitants  in  case  of 
invasion  is  to  stay  at  home  and  keep  watch  over  their  prop- 
erty. It  can  hardly  escape  diminution  by  means  of  requisi- 
tions and  other  exactions,  but  there  can  be  no  reason  in  the 
nature  of  things,  and  there  is  certainly  none  in  the  laws  of 
war,  why  it  should  be  destroyed. 

Movable  property  belonging  to  the  non-combatant  popula- 
tion of  occupied  districts  may  not  be  seized  unless  it  takes 
the  form  of  arms,  war  material,  appliances  adapted  for  the 
transmission  of  news  or  for  the  transport  of  persons  or 
goods,  whether  on  land,  at  sea,  or  in  the  air.  Even  in  these 
cases  it  must  be  restored  at  the  conclusion  of  peace,  and  in- 
demnities must  be  paid  for  it.1  The  heads  given  above  include 
wireless  telegraphy  apparatus,  aeroplanes  and  dirigible  bal- 
loons, and  the  rolling  stock  of  railways,  when  owned  by  in- 
dividuals or  companies.  The  reference  to  means  of  transport 
at  sea  was  put  into  the  text  of  the  Regulation  from  which  it 
is  taken  in  order  to  deal  with  vessels  seized  by  troops  when 
in  port  or  engaged  in  river  navigation  ;  for  these  come  under 
the  laws  of  land  warfare.  Ordinary  cases  of  capture  at  sea 
were  excluded  by  the  phrase  "  apart  from  cases  governed  by 
maritime  law."  The  question  of  the  source  of  the  indemni- 
ties to  be  paid  at  the  conclusion  of  the  war  for  the  temporary 
use  of  the  articles  that  we  are  considering  was  left  unsettled. 
No  doubt,  as  Professor  Holland  remarks,  "  the  treaty  of  peace 
must  settle  on  whom  the  burden  of  making  compensation  is 
ultimately  to  fall."2  The  Hague  Conference  of  1907  dealt 
with  a  second  case  on  the  border  between  land  and  sea  war- 
fare, when  on  the  motion  of  Denmark,  which  had  been  agitat- 
ing the  matter  in  international  assemblies  from  the  time  of 
the  Brussels  Conference  of  1874,  it  inserted  in  its  laws  of 
1  See  Article  53.  2  The  Laws  of  War  on  Land,  p.  67. 


442  THE  LAWS  OF  WAR 

war  on  land  the  declaration  that  "  submarine  cables  connect- 
ing an  occupied  territory  with  a  neutral  territory  shall  not 
be  seized  or  destroyed  except  in  the  case  of  absolute 
necessity.  They  also  must  be  restored  at  the  conclusion 
of  peace,  and  indemnities  must  be  paid  for  them."1  The 
permission  to  cut  or  otherwise  destroy  the  cable  under 
stress  of  great  military  necessity  can,  of  course,  apply  to  the 
shore  end  only.  Its  treatment  at  sea  comes  under  the 
rules  of  naval  warfare.  In  the  Convention  concerning  the 
Rights  and  Duties  of  Neutral  Powers  and  Persons  in  War 
on  Land  the  nineteenth  article  laid  down  that  a  belligerent 
occupant  might  in  the  case  of  absolute  necessity,  but  not 
otherwise,  make  use  of  "railway  material  coming  from  the 
territory  of  neutral  powers,  whether  belonging  to  those 
powers,  or  to  companies  or  private  persons."  But  if  this  per- 
mission is  acted  on,  the  belligerent  must  send  back  the  im- 
pressed material  as  soon  as  possible  to  the  country  of  origin, 
which  has  the  right  meanwhile  to  make  use  of  a  correspond- 
ing quantity  of  railway  material  coming  from  the  territory 
of  the  power  that  has  made  the  seizure.  In  the  end  a  sort 
of  balance  is  to  be  struck,  according  to  the  amount  of  mate- 
rial used  and  the  length  of  the  period  of  usage  on  either  side, 
and  the  power  that  has  the  advantage  is  to  pay  a  correspond- 
ing indemnity  to  the  other.2  These  rules  show  that  the 
principle  of  immunity  of  private  movables  is  jealously 
guarded,  and  when  in  great  emergencies  a  temporary  viola- 
tion of  it  is  permitted,  the  permission  is  accompanied  by  the 
imposition  of  a  duty  to  provide  compensation.  We  must, 
however,  add  that  this  immunity,  like  others  we  have  con- 
sidered, is  conditional  on  quiet,  peaceable,  and  regular  be- 
havior from  the  point  of  view  of  the  military  occupant. 
Seizure  and  destruction  of  personal  property  may  follow  on 
conviction  of  an  offence  against  the  rules  laid  down  by  the 

1  See  Article  54. 

2  Higgins,  The  Hague  Peace  Conferences,  pp.  286,  287. 


WITH   REGARD   TO   ENEMY   PROPERTY   ON   LAND       443 

invader,  such,  for  instance,  as  giving  information  to  the  dis- 
possessed authorities,  harboring  their  agents,  or  attacking 
their  scouts  and  sentinels.  Moreover,  private  movables  are 
subject  to  severe,  if  orderly,  exactions,  which  we  will  describe 
in  the  next  section. 

§  180 

The  technical  names  for  the  exactions  to  which  we  have 
referred  are  Requisitions,  Contributions,  and  Fines.  Strictly 
speaking,  requisitions  are  articles  of  daily  con-  The  special  case  of 
sumption  and  use  taken  by  an  invading  army  St'ions0"^0" 
from  the  people  of  the  occupied  territory;  con-  Fines- 
tributions  are  sums  of  money  exacted  over  and  above  the 
taxes,  and  fines  are  payments  levied  upon  a  district  as  a  pun- 
ishment for  some  offence  against  the  invaders  committed 
within  it.  But  the  two  former  terms  are  used  interchange- 
ably in  a  loose  and  popular  sense  to  signify  anything,  whether 
in  money  or  in  kind,  demanded  by  an  occupying  force  from 
the  inhabitants  of  the  country  it  has  overrun. 

The  invader  has  an  undoubted  right  to  levy  requisitions  at 
his  own  discretion,  and  in  most  modern  wars  he  has  done  so, 
sometimes  leniently,  sometimes  severely.  The  Hague  Regu- 
lations of  1907  limit  the  permissible  demand  to  what  is  "re- 
quired for  the  necessities  of  the  army  of  occupation."  These 
exactions  are  to  be  "  in  proportion  to  the  resources  of  the 
country,"  and  must  not  involve  the  inhabitants  in  operations 
of  war  against  their  own  side.  They  can  be  demanded  only 
"  on  the  authority  of  the  commander  in  the  locality  occu- 
pied." The  demand  should  be  made  in  writing,  and  receipts 
are  to  be  given  for  the  articles  supplied.  This  is  desirable  in 
every  case,  as  evidence  of  what  has  been  taken.  It  is  made 
obligatory  when  the  supplies  are  not  paid  for  in  ready  money. 
Such  payment  is  recommended,  but  obviously  the  recom- 
mendation cannot  be  carried  out  always  and  everywhere. 
No  commander  would  let  his  soldiers  starve  in  the  midst  of 


444  THE  LAWS  OP  WAR 

plenty  merely  because  his  military  chest  had  been  exhausted 
for  the  moment,  or  had  not  kept  up  with  his  march.  But  in 
order  to  secure  that  the  inhabitants  should  eventually  receive 
remuneration,  the  Hague  Conference  of  1907  added  to  the 
clause  that  directed  receipts  to  be  given,  if  cash  was  not 
forthcoming,  another  to  the  effect  that  the  payment  of  the 
amount  due  should  be  made  "as  soon  as  possible.1  It  did  not, 
however,  say  from  whom  the  payment  was  to  come.  The 
natural  source  is  the  side  that  received  the  supplies ;  but  if  it 
happens  to  be  victorious,  it  may,  as  one  of  the  conditions  of 
peace,  force  its  beaten  adversary  to  provide  the  funds.  Or  it 
may  find  those  whom  it  has  beaten  in  the  field  so  impover- 
ished that  it  has  to  choose  between  leaving  the  country  abso- 
lutely ruined  or  paying  for  the  requisitions  of  both  sides. 
Great  Britain  was  confronted  by  these  alternatives  at  the 
close  of  the  Boer  War  in  1902,  and  she  chose  the  latter.  By 
the  tenth  article  of  the  Peace  of  Vereeniging  "all  receipts 
given  by  officers  in  the  field  of  the  late  Republics  or  under 
their  orders,"  if  found  "to  have  been  duly  issued  in  return 
for  valuable  consideration,"  were  to  be  received  as  evidence 
of  the  war  losses,  for  the  making  good  of  which  a  sum  of 
three  millions  sterling  was  granted.2  In  modern  wars  civil- 
ized armies  carry  with  them  vast  trains  of  provisions  and 
other  supplies,  and  regard  requisitions  as  a  supplementary 
resource.  But  in  the  turmoil  and  confusion  of  the  struggle, 
it  often  happens  that  the  best  organized  services  fail  on 
special  occasions,  such  as  a  forced  march  or  an  unexpected 
engagement,  to  satisfy  the  needs  of  the  troops,  and  then 
what  is  wanted  must  be  taken  from  the  surrounding  country. 
The  collection  is  generally  made  through  the  local  authorities, 
and  only  when  they  have  fled,  or  when  there  is  not  time  to 
set  them  in  motion,  are  soldiers  detailed  to  bring  in  what  is 
required.  In  Manchuria  during  the  war  of  1904-1905  the 
Japanese  applied  a  new  method  which  reflects  equal  credit  on 

1  See  Article  52. 

2  London  Times,  June  3,  1902. 


WITH   REGARD   TO   ENEMY   PROPERTY    ON   LAND       445 

their  humanity  and  their  ingenuity.  In  return  for  materials 
and  services  they  gave  military  cheques,  which  could  be  ex- 
changed for  silver  coin  at  stated  times  and  places.  They 
offered  the  standard  prices  of  the  district,  as  settled  between 
their  authorities  and  the  Chinese  Chambers  of  Commerce. 
These  were  placarded  in  the  towns  and  villages,  and  it  was 
announced  that  whatever  was  requisitioned  would  be  paid  for 
at  the  rates  in  question.  The  result  was  that  after  a  time 
the  people  used  the  cheques  as  paper  money,  and  asked  for 
no  coin  in  exchange  for  them.1  The  plan,  or  some  modifica- 
tion of  it,  might  be  generally  adopted  with  great  advantage. 
Most  armies  fix  their  own  prices,  which  they  do  not  put  too 
high.  Great  Britain  and  the  United  States  pay  market 
rates,  but  as  a  rule  leave  them  to  be  determined  on  the  spur 
of  the  moment.  The  Japanese  system  avoids  either  extreme, 
and,  in  addition,  solves  the  difficulty  caused  by  the  occasional 
absence  of  ready  money. 

Unlike  requisitions,  which  may  be  demanded  by  the  com- 
mander on  the  spot,  contributions  are  not  to  be  collected 
except  on  the  responsibility  of  the  General  in  comm.and,  and 
under  a  written  order.  He  may  levy  them  for  the  needs  of 
the  army  of  occupation,  or  for  the  expenses  of  the  adminis- 
tration of  the  occupied  territory.  It  will  be  remembered 
that  the  ordinary  taxes  are  paid  into  the  treasury  of  the 
invader,  who  is  bound  to  use  them  for  administrative  pur- 
poses to  the  same  extent  as  the  dispossessed  government. 
Unless,  therefore,  the  yield  from  the  usual  sources  of  rev- 
enue is  extraordinarily  small,  there  will  be  no  need  of 
contributions  for  the  everyday  work  of  keeping  order  and 
doing  justice  between  man  and  man.  But  the  permission  to 
take  them  for  the  needs  of  the  army  of  occupation  opens  out 
a  wide  possibility  of  exaction.  It  is  quite  true  that  a  con- 
tribution in  money  may  sometimes  be  less  irksome  than  a 
render  in  kind,  and  may  indeed  go  further  if  the  sum  made 

1  Takahashi,  International  Law  applied  to  the  Russo-Japanese  War,  pp. 
260,  261. 


446  THE  LAWS   OF   WAR 

over  is  spent  in  an  advantageous  purchase  of  supplies ; 
but  it  is  also  true  that  a  whole  province  may  be  impover- 
ished by  pecuniary  demands  that  come  within  the  letter  of  the 
Hague  Regulations.  Suppose,  for  instance,  that  a  poor  but 
warlike  state  invaded  a  neighbor  and  gained  initial  successes. 
It  might  maintain  its  forces  and  keep  up  their  military 
equipment  for  a  long  time  by  constantly  levying  contribu- 
tions "applied  to  the  needs  of  the  army."  Thus  the  Napo- 
leonic principle  of  making  the  war  support  itself  might  be 
carried  out  with  rigor,  while  the  letter  of  the  rules  formulated 
at  the  Conferences  of  1899  and  1907  was  strictly  observed. 
In  this  particular  matter  the  Regulations  protect  inhabi- 
tants of  occupied  districts  against  pecuniary  exactions  levied 
merely  for  the  enrichment  of  states  or  individuals ;  and 
doubtless  this  is  a  great  gain.  But,  literally  interpreted,  they 
do  not  prevent  a  country  from  charging  the  largest  share  of 
the  expenses  of  its  war  on  the  unfortunate  inhabitants  of 
districts  overrun  by  its  armies.  In  levying  contributions, 
whatever  may  be  the  object  in  view,  the  assessment  in  use 
for  the  purpose  of  ordinary  taxation  is  to  be  followed  as  far 
as  possible,  and  receipts  are  to  be  given  to  the  contributories.1 
But  there  are  no  provisions  for  repaying  them,  and  they 
cannot  expect  anything  of  the  kind,  unless  their  own  govern- 
ment, by  way  of  equalizing  burdens,  gives  them  compensation 
after  the  war  from  the  general  taxation  of  the  whole  country, 
as  France  did  in  1871  to  those  who  had  borne  the  brunt  of  the 
German  exactions. 

With  regard  to  maritime  warfare,  the  fourth  Article  of  the 
Hague  Convention  of  1907  concerning  Bombardment  by  Naval 
Forces  in  Time  of  War  prohibited  "  the  bombardment  of  un- 
defended ports,  towns,  villages,  dwellings,  or  buildings,  for 
the  non-payment  of  money  contributions."  Thus  one  of  the 
pet  projects  of  a  certain  school  of  naval  officers,  both  in 
England  and  on  the  Continent  of  Europe,  was  ruled  out  of 

1  See  Articles  48,  49,  61. 


WITH    REGARD  TO   ENEMY    PROPERTY   ON   LAND       447 

the  warfare  of  civilized  men.  No  one  can  doubt  now  that  it  is 
not  lawful  to  bombard  rich  and  undefended  coast  towns  if  they 
refuse  to  pay  ransom.1  After  much  controversy  this  humane 
principle  has  at  length  received  the  consecration  of  general 
assent ;  and  though  it  is  embodied  in  a  Convention  that  relates 
to  naval  warfare,  we  have  referred  to  it  here,  because  the  towns 
and  buildings  protected  by  it  must  of  necessity  be  built  on  land. 
Fines,  it  will  be  remembered,  are  pecuniary  penalties 
levied  on  places  and  districts  by  invaders,  when  they  have 
found  themselves  unable  to  discover  and  bring  to  justice  those 
who  have  committed  offences  against  their  safety  therein. 
Article  50  of  the  Hague  Regulations  declares  that  "  no 
general  penalty,  collective  or  otherwise,  can  be  inflicted  on 
the  population  on  account  of  the  acts  of  individuals  for 
which  it  cannot  be  regarded  as  collectively  responsible." 
At  first  sight  these  words  would  seem  to  forbid  all  severities 
against  local  authorities  or  populations  in  the  aggregate  ; 
but  the  last  phrase  points  towards  a  modification  of  this 
view.  For  by  prohibiting  such  penalties  when  the  commu- 
nity cannot  be  held  collectively  responsible,  it  allows  them 
inferentially  when- responsibility  can  be  brought  home.  If  a 
detachment  occupying  a  village  were  slaughtered  in  the  night 
while  asleep,  few  would  venture  to  argue  that  the  community 
had  no  collective  responsibility,  should  a  conspiracy  of  silence 
baffle  all  attempts  to  discover  the  actual  perpetrators  of  the 
massacre.  On  the  other  hand,  if  a  train  were  derailed  in 
the  night  while  passing  through  a  wild  ravine  far  from 
human  habitation,  few  would  accept  the  doctrine  that  the 
population  for  miles  around  must  have  known  of  the  deed 
and  assisted  in  it  directly  or  indirectly.  It  resolves  itself 
into  a  matter  of  evidence,  though  the  proof  must  necessarily 
be  of  that  rough  and  ready  kind  which  alone  is  possible  in 
warfare.  When  the  complicity  of  the  inhabitants  is  evident 
either  by  direct  proof  or  from  the  circumstances  of  the  case, 

1  Higgins,  The  Hague  Peace  Conferences,  pp.  348,  352-354. 


448  THE   LAWS   OF   WAR 

they  are  not  protected  by  the  article  we  are  discussing,  and 
retribution  could  hardly  take  a  milder  form  than  a  pecuniary 
fine.  The  Germans  in  France  during  the  war  of  1870,  and 
the  British  in  South  Africa  during  the  Boer  War,  levied 
such  fines  when  the  responsibility  of  the  population  was 
more  constructive  than  actual.  But  it  must  be  noted  that 
there  was  no  Hague  Code  in  existence  when  the  former  con- 
flict was  fought,  and  also  that  the  Boer  republics  had  not  been 
allowed  to  take  part  in  the  Peace  Conference  of  1899,  which 
made  the  rules  it  drew  up  binding  on  the  signatory  powers 
only  in  their  wars  with  one  another.  In  neither  case,  there- 
fore, were  the  combatants  under  any  obligation  to  observe 
the  Hague  Regulations.  Had  they  been  so  bound,  we  may 
hold  that  they  ought  to  have  abstained  not  only  from  levying 
fines  when  it  was  impossible  to  bring  home  responsibility  to 
the  inhabitants  generally,  but  also  from  other  forms  of  col- 
lective penalty  to  which  resort  was  sometimes  had  in  the 
like  case.  We  refer  to  the  destruction  of  houses  and  farms 
and  the  compulsion  put  on  the  principal  inhabitants  to  make 
them  ride  on  the  military  trains  running  through  their  dis- 
tricts. Such  severities  may  be  justified  under  the  terms  of 
Article  50  when  it  is  evident  that  the  whole  population 
sympathizes  with  the  doers  of  the  acts  complained  of  and 
protects  them  from  capture,  but  not  otherwise.  No  general 
can  be  expected  to  sit  down  quietly  and  do  nothing,  while 
his  sentinels  and  scouts  are  cut  off,  and  his  convoys  inter- 
cepted in  a  district  which  is,  in  theory,  engaged  under  his 
protection  in  the  pursuits  of  peaceful  industry.  But  he  is 
bound  to  make  every  effort  to  discover  the  actual  offenders, 
and  only  when  he  fails  through  the  determination  of  the  in- 
habitants to  screen  them  ought  he  to  apply  such  general  pen- 
alties as  fines,  burnings,  and  the  seizure  of  hostages.  This 
view  of  the  Hague  Regulation  that  deals  with  the  matter 
regards  it  as  allowing  reprisal  in  the  form  of  general  penal- 
ties when  there  is  no  doubt  about  collective  responsibility, 
while  forbidding  anything  of  the  kind  if  no  such  responsi- 


WITH   REGARD   TO   ENEMY  PROPERTY   ON   LAND       449 

bility  can  be  established.  Professor  Oppenheim,1  however, 
and  also  Professor  Holland, 2  take  the  ground  that  Article 
50  has  no  bearing  on  reprisal,  and  simply  provides  for  cases 
in  which  the  question  of  it  does  not  arise.  If  this  view  be 
correct,  the  commander  of  an  occupying  force  is  free  to  in- 
flict any  kind  of  severity  on  a  district  he  has  overrun,  if 
only  he  bethinks  himself  of  saying  that  it  is  done  by  way  of 
reprisal  for  certain  unlawful  acts  perpetrated  by  inhabitants 
or  with  their  connivance.  An  article  that  can  be  circum- 
vented so  easily  is  hardly  worth  enacting.  It  is  better  to 
deduce  the  exceptions  to  a  rule  from  its  own  principles  than 
to  set  it  aside  at  will  on  account  of  extraneous  considerations.3 

1  International  Law,  vol.  I,  p.  175. 

2  The  Law  of  War  on  Land,  p.  55. 

8  For  the  text  of  the  Hague  Regulations  referred  to  in  the  last  four  sections, 
see  Higgins,  The  Hague  Peace  Conferences,  pp.  244-253  ;  Whittuck,  Inter- 
national Documents,  pp.  139-142  ;  Scott,  The  Hague  Peace  Conferences,  vol. 
II,  pp.  394-401 ;  Supplement  to  the  American  Journal  of  International  Law, 
vol.  II,  pp.  112-117. 


CHAPTER  V 

THE    LAWS    OP   WAR   WITH    REGARD    TO    ENEMY    PROPERTY 

AT   SEA 

§  181 

BOTH  the  public  vessels  of  a  state  and  the  private  vessels 
of  its  citizens  are  deemed  to  carry  with  them  its  national 
The  national  character.  Public  ships  are  generally  equipped 

character  of  ves-  ,  ,  , 

seis.  and  armed  for  war  ;  but  every  maritime  state 

maintains  peaceful  services  afloat  as  well  as  ashore,  and  the 
vessels  belonging  to  them  are  as  truly  public  in  character  as 
are  the  flag-ships  of  its  admirals.  Indeed  all  vessels  con- 
trolled entirely  by  the  state,  commanded  by  its  officers,  and 
employed  in  its  service,  are  public  ships,  even  though  the 
state  does  not  own  them,  but  has  chartered  them  for  tem- 
porary use.  The  distinction  we  constantly  draw  between 
the  legal  position  of  war-ships  and  merchantmen  ought  in 
strict  accuracy  to  be  drawn  between  public  and  private 
vessels. 

The  character  of  a  public  vessel  is  proved  by  her  commis- 
sion. In  most  cases  the  flag  she  flies,  her  outward  appear- 
ance, or  the  word  of  her  commander,  are  sufficient  evidence.1 
But  it  is  necessary  to  remember  that  in  time  of  war  the 
fighting  ships  of  the  belligerents  are  free  to  disguise  them- 
selves in  any  way  they  please,  and  to  fly  a  false  flag  as  long 
as  they  run  up  the  true  one  before  they  fire  the  first  hostile 
gun.  We  must  also  bear  in  mind  that  there  are  differences 
of  opinion  among  states  as  to  the  legality  of  merchantmen 
converted  at  sea  into  armed  cruisers,  and  as  to  the  exact 
conditions  under  which  the  ships  of  a  volunteer  navy  are 

1  Perels,  Seerecht,  §  11. 
450 


WITH   REGARD   TO   ENEMY   PROPERTY   AT   SEA         451 

lawful  combatants.1  With  regard  to  private  vessels,  their 
nationality,  as  we  have  already  seen,  is  shown  by  the  flag 
they  are  entitled  to  fly.2  A  false  flag  may  be  hoisted ;  but 
the  right  of  search  is  a  protection  to  belligerents  against 
such  an  obvious  device.  The  true  flag  is  determined  by  the 
ship's  certificate  of  registry.3  No  doubt  it  is  sometimes  pos- 
sible to  obtain  by  false  declarations  papers  which,  though 
perfectly  regular  and  given  in  good  faith,  secure  for  a  ship 
registration  under  the  flag  of  one  country  while  it  really  be- 
longs to  the  mercantile  marine  of  another.  In  the  case  of 
the  Virginius  the  United  States  went  so  far  as  to  maintain 
that  a  certificate  of  registry  was  conclusive  as  between  a 
merchantman  searched  by  a  cruiser  and  the  searching  vessel. 
It  would  be  difficult  to  defend  this  doctrine  in  its  original 
breadth ;  but  there  can  be  no  doubt  that  a  ship's  papers,  if 
genuine,  are  conclusive  as  to  its  national  character.4  Yet 
even  when  it  is  quite  clear  that  a  vessel  belongs  to  a  neutral 
owner,  it  will  be  treated  as  enemy  property  if  it  is  chartered 
by  the  enemy,  or  uses  habitually  his  flag  and  pass,  or  sails 
under  a  license  given  by  his  government.5  Indeed  a  mari- 
time belligerent  would  capture  and  condemn  its  own  private 
vessels  if  found  in  any  of  these  predicaments. 

§  182 
As  a  general  rule 

Public  and  private  vessels  of  the  enemy 

may  be  attacked  and  captured  in  their  own  ports  and  waters, 
in  the  ports  and  waters  of  the  attacking  power,  and  on  the 
high  seas,  but  not  in  neutral  or  neutralized  ports  and  waters. 
But  to  this  rule  there  are  several  exceptions,  some  of  them 

1  See  §§  201,  202.  2  See  §  151.  8  See  §  187. 

*  Moore,  International  Law  Digest,  vol.  II,  pp.  898,  899,  981-983  ;  Hall, 
International  Law  (5th  «d.),  pp.  275-278. 
6  Holland,  Manual  of  Naval  Prize  Law,  p.  6. 


452  THE   LAWS   OF   WAB 

based  on  general  agreement  and  embodied  in  law-making 
treaties,  while  others  arise  out  of  the  almost  unbroken 
The  extent  to  usage  of  maritime  warfare  in  recent  times. 

which  vessels  of  ° 

the  enemy  are        We  will   take  them  one  by  one,  and  describe 

liable  to  belligerent     .1      •  j 

capture.  their  nature  and  extent. 

First  among  the  exceptions  to  the  rule  of  capture  come 
hospital  ships  when  fitted  out  and  employed  according  to 
the  provisions  of  the  Hague  Conventions  on  the  subject. 
The  tenth  Convention  of  1907  binds  the  powers  who  have 
ratified  it;  but  the  third  Convention  of  1899  remains  in 
force  between  states  that  accepted  it  and  have  not  ratified 
the  subsequent  instrument.1  We  have  already  described 
these  two  great  international  agreements  when  we  were 
dealing  with  Red  Cross  work  at  sea,  and  it  will  not  be  neces- 
sary to  repeat  here  what  was  said  in  a  previous  chapter.2 

Next  come  vessels  employed  on  religious,  scientific,  or  phil- 
anthropic missions.  Their  exemption  from  capture  was  orig- 
inally established  by  a  usage  extending  back  to  the  middle 
of  the  eighteenth  century,  but  it  now  rests  on  a  specific 
agreement  contained  in  the  fourth  article  of  the  eleventh 
Hague  Convention  of  1907.  A  corresponding  obligation  to 
refrain  from  taking  any  part  in  hostilities  is  laid  on  the 
protected  vessel.  Obviously  this  is  of  the  essence  of  the 
arrangement,  and,  therefore,  though  it  is  not  expressly  men- 
tioned in  the  Convention,  it  must  be  understood  as  still 
subsisting.  This  cannot  be  said  of  the  other  customary 
duty  of  obtaining  a  pass  from  the  enemy's  government. 
It  can  hardly  be  regarded  as  essential,  but  is  rather  of 
the  nature  of  an  extraneous  safeguard.  And  the  silence 
of  the  Convention  with  regard  to  it  was  meant  to  be 
taken  as  signifying  that  it  is  no  longer  obligatory.3  The 
point  is  important;  for  the  case  of  Commander  Flinders 
shows  what  unpleasant  possibilities  lurk  in  ambiguity.  He 

1  Convention  of  1907  for  the  Adaptation  of  the  Principles  of  the  Geneva 
Convention  to  Maritime  War,  Article  25. 

2  See  §  165.  8  Actes  et  Documents,  vol.  HI,  pp.  1000-1003. 


WITH   REGARD   TO   ENEMY   PROPERTY  AT   SEA         453 

was  engaged  in  Australian  exploration  during  the  early  years 
of  the  nineteenth  century,  in  the  midst  of  the  long  war  with 
Revolutionary  and  Napoleonic  France.  Before  he  sailed 
from  England  he  had  obtained  a  passport  from  the  French 
Minister  of  Marine,  and  during  his  voyage  he  had  scrupu- 
lously obeyed  his  instructions  to  "  act  in  all  respects  towards 
French  ships  as  if  the  two  countries  were  not  at  war."  Yet 
when  in  1803  he  put  into  Port  Louis  in  Mauritius,  then  a 
French  colony,  his  ship  was  detained,  and  he  and  his  crew 
were  made  prisoners  of  war.  It  seems  that  at  Sydney  his 
original  vessel,  the  Investigator,  had  been  found  to  be  rotten 
and  unseaworthy,  and  he  had  exchanged  her  for  the  Cumber- 
land, which  was  placed  at  his  disposal  by  the  Governor  of 
New  South  Wales.  The  French  authorities  at  Mauritius 
detained  the  vessel  and  all  within  her,  on  the  ground  that 
she  was  not  the  ship  to  which  a  passport  had  been  given, 
and  that  there  were  suspicious  circumstances  connected 
with  her  entry  into  Port  Louis.  Flinders  remained  in  cap- 
tivity till  he  was  released  on  parole  in  1810,  and  the  Cum- 
berland was  retaken  when  Mauritius  capitulated  to  the 
British  in  the  same  year..  The  case  shows  the  need  of 
extreme  care  in  carrying  into  effect  arrangements  between 
belligerent  powers.1 

Cartel-ships  form  another  exception.  They  are  vessels  em- 
ployed in  services  connected  with  the  exchange  of  prisoners 
of  war.  Each  of  them  should  carry  a  permit  emanating  from 
the  supreme  government  of  the  enemy  state,  authorizing  her 
to  pursue  her  humane  mission  without  molestation.  In  the 
case  of  the  Carolina*  SirW.  Scott  decided  that  a  subordinate 
authority  might  issue  such  a  protection ;  and  in  the  case  of 
the  Daifjie3  he  laid  down  that  to  enjoy  the  benefit  of  it  the 
cartel-ship  need  not  have  prisoners  actually  on  board.  She 
is  protected  from  capture  on  both  the  outward  and  the  return 

1  Flinders,  Voyages,  vol.  II,  chs.  iii-ix . 

2  C.  Robinson,  Admiralty  Reports,  vol.  I,  p.  336. 

•  C.  Robinson,  Admiralty  Reports,  vol.  Ill,  p.  140. 


454  THE  LAWS   OF   WAR 

voyage,  and  even  when  she  has  done  no  more  than  enter  on 
her  functions  by  being  put  in  a  state  of  preparation  to  per- 
form them.  But  the  mere  intention  to  become  a  cartel-ship 
will  not  be  sufficient ;  and  a  vessel  on  her  way  from  one  port 
to  another  of  her  own  country  for  the  purpose  of  taking  on 
herself  that  character  may  be  captured,  unless  she  has  ob- 
tained a  pass  from  a  commissary  of  prisoners,  who  is  an  offi- 
cial of  one  belligerent  residing  in  the  country  of  the  other 
in  order  to  carry  out  the  arrangements  connected  with  ex- 
change. Belligerents  may  employ  either  public  or  private 
vessels  in  their  cartel  service ;  but  the  carriage  of  merchan- 
dise, despatches,  or  passengers  is  strictly  forbidden,  and  also 
the  performance  df  any  hostile  acts,  or  even  the  taking  on 
board  of  the  means  to  perform  them  in  the  shape  of  arma- 
ment. The  law  of  the  matter  rests  solely  on  usage  as  inter- 
preted by  prize  court  decisions,  and  is  at  present  of  little 
importance  owing  to  the  disuse  of  exchange  in  recent  wars. 
But  the  practice  maybe  revived  at  anytime,  and  therefore  it 
cannot  be  passed  over  unnoticed. 

We  pass  on  to  fishing  smacks  and  market  boats.  Small  craft 
engaged  exclusively  in  coast  fisheries  or  in  the  petty  transac- 
tions of  local  trade  were  exempted  from  belligerent  capture 
along  with  their  appliances,  rigging,  tackle,  and  cargo  by  the 
third  article  of  the  eleventh  Hague  Convention  of  1907.  But 
"  this  exemption  no  longer  applies  from  the  moment  that  they 
take  any  part  whatever  in  hostilities."  And  further,  "the 
contracting  powers  bind  themselves  not  to  take  advantage  of 
the  harmless  character  of  the  said  vessels  in  order  to  use  them 
for  military  purposes  while  preserving  their  peaceful  appear- 
ance." The  Convention  safeguards  and  enlarges  an  immu- 
nity which  had  grown  up  by  custom  extending  back  to 
mediaeval  times.  In  1798  Sir  W.  Scott  decided  in  the  case 
of  the  Young  Jacob  and  Johanna  J  that  it  was  a  rule  of  comity 
only,  while  a  few  years  afterwards  the  French  Government 

1  C.  Robinson,  Admiralty  Reports,  vol.  I,  p.  20. 


WITH  REGARD  TO  ENEMY  PROPERTY  AT  SEA    455 

maintained  that  it  was  an  obligatory  rule  of  law.  Whichever 
view  may  have  been  correct  more  than  a  century  ago,  there 
can  be  no  doubt  that  the  latter  has  now  prevailed.  Deep-sea 
fishing  vessels  may  be  captured  like  other  ships  of  the  enemy ; 
but  inshore  fishermen  are  allowed  to  pursue  their  avocation 
unmolested  on  condition  of  refraining  from  hostilities,  and 
this  privilege  of  theirs  has  been  extended  to  boatmen  engaged 
in  petty  local  trade  along  the  coast.  If,  however,  the  new 
plan  of  fitting  trawlers  with  sweeps  for  mines  is  continued, 
in  all  probability  the  immunity  will  not  long  survive.  Mean- 
while the  exact  force  of  some  of  the  expressions  employed 
in  the  Convention  may  be  matter  of  doubt.  The  question 
has  been  raised  whether  by  the  words  of  the  third  article 
the  offenders  forfeit  nothing  but  their  own  immunity  in 
case  of  a  hostile  act,  or  whether  all  boats  of  a  like  kind  be- 
longing to  the  same  belligerent  are  thereby  rendered  liable 
to  capture.  The  better  opinion  seems  to  be  that  none  but 
boats  that  have  themselves  violated  the  Convention  may  be 
subjected  under  it  to  the  severities  of  warfare.  But  this 
view  does  not  exclude  the  possibility  of  a  general  attack  on 
all  fishing  boats  by  way  of  reprisal,  if  the  wrong-doing  takes 
place  on  a  large  scale  and  is  continued  in  spite  of  remon- 
strances. Moreover,  it  seems  certain  that  the  coast  referred 
to  in  the  phrase  "coast  fisheries"  need  not  be  the  coast  of 
the  fishermen's  own  country,  but  any  coast  where  they  have 
a  legal  right  to  fish.  On  the  other  hand  it  is  understood 
that  coasting  steamers  are  not  reckoned  among  small  boats 
employed  in  local  trade,  and  therefore  receive  no  protection 
under  the  Convention.1 

Enemy  ships  protected  by  licenses  are  free  from  capture  as 
long  as  they  navigate  and  trade  in  accordance  with  the  terms 
laid  down  therein.  It  is,  as  we  have  already  seen, 2  the  gen- 
erally received  doctrine  that  war  works  a  suspension  of  com- 
mercial relations  between  subjects  of  the  belligerent  powers. 

1  Higgins,  The  Hague  Peace  Conferences,  pp.  403,  404. 

2  See  §  143. 


456  THE  LAWS   OF   WAR 

Moreover,  a  state  engaged  in  hostilities  has  a  right  to  prevent 
certain  kinds  of  traffic  between  neutrals  and  the  enemy.  But 
it  may,  if  it  chooses,  issue  licenses  to  its  own  subjects,  or 
neutral  subjects,  or  enemy  subjects,  allowing  them  to  carry 
on  a  trade  ordinarily  forbidden.  Belligerents  sometimes  ex- 
ercise this  right  as  a  matter  of  state  policy ;  and  when  they 
do  so  in  favor  of  an  enemy  the  effect  is  to  turn  him  into  a 
friend  as  far  as  all  matters  covered  by  the  license  are  con- 
cerned. His  ship  cannot  be  captured  ,•  but  it  must  keep  to 
a  specified  course  in  its  voyage,  and  trade  at  the  places  and 
in  the  goods  set  forth  by  the  terms  of  the  instrument.  If  it 
fails  to  observe  the  conditions  laid  down  for  it,  its  immunity 
is  forfeited.  The  issue  of  general  licenses  is  a  high  act  of 
sovereignty,  which  must  emanate  from  the  central  govern- 
ment of  the  state.  But  a  naval  or  military  commander  may 
issue  licenses  good  within  the  area  he  controls.1 

The  sixth  Hague  Convention  of  1907  conferred  an  incom- 
plete and  limited  immunity  on  three  classes  of  merchantmen: 
those  who  are  found  in  an  enemy  port  at  the  commencement  of 
hostilities ;  those  who  enter  such  a  port  ignorant  that  war  has 
broken  out,  and  having  left  their  last  port  of  departure  while 
peace  still  existed;  and  those  who  are  encountered  on  the  high 
seas  in  the  same  condition  of  ignorance,  and  having  sailed  before 
the  war  began  from  the  last  port  at  which  they  had  previously 
touched.  With  regard  to  all  these  the  old  right  of  confisca- 
tion is  taken  away  from  the  enemy.  Instead  of  it  he  has 
received  a  right  to  detain  till  the  end  of  the  war  without 
compensation,  or  to  requisition  with  compensation,  and,  in 
the  third  case,  destruction  is  allowed  as  an  alternative,  if 
compensation  is  paid  and  provision  made  for  the  safety  of 
the  persons  on  board  and  the  preservation  of  the  ship's  papers. 
But  Germany  and  Russia  entered  a  reservation  against  the 
treatment  accorded  to  this  last  class  of  cases,  on  the  ground 
that  none  but  states  that  possessed  naval  stations  in  all  parts 

i  See  §  214. 


WITH  REGARD  TO  ENEMY  PROPERTY  AT  SEA    457 

of  the  world  would  be  able  to  take  such  vessels  into  port. 
Others  would  be  obliged  to  destroy  them  and  pay  compensa- 
tion. They  would  thus  be  saddled  with  heavy  pecuniary  bur- 
dens which  the  state  with  a  plentiful  supply  of  ports  would 
escape.1  The  result  is  that  German  and  Russian  cruisers  re- 
tain the  right  to  capture  enemy  merchantmen  found  on  the 
high  seas  in  a  state  of  ignorance  of  the  existence  of  war,  and 
German  and  Russian  merchantmen  are  still  liable  to  the  ex- 
ercise of  this  right  by  war-ships  of  their  enemies.  An  attempt 
was  made  at  the  Conference  to  render  obligatory  the  modern 
custom  of  granting  days  of  grace,  within  which  enemy  mer- 
chantmen found  in  port  at  the  opening  of  hostilities  are  al- 
lowed to  depart  freely  provided  that  they  are  not  laden  with 
contraband,  or  engaged  in  taking  to  the  enemy  military  or 
naval  officers,  or  despatches  relating  to  the  war.  But  it  was 
defeated  owing  to  the  desire  of  a  group  of  naval  powers, 
headed  by  Great  Britain,  to  preserve  liberty  of  action  in  the 
face  of  the  increasing  employment  of  merchant  vessels  under 
modern  conditions  of  naval  warfare  in  transport  services,  and 
the  carriage  of  coal  and  stores  to  belligerent  fleets.  -  A  strict 
obligation  to  allow  the  departure  of  enemy  steamers  capable 
of  carrying  large  bodies  of  men  might  inflict  irreparable  injury 
on  a  country  liable  to  be  invaded  by  armies  sent  across  the 
sea.  Considerations  of  this  kind  prevailed ;  and  while  the 
Conference  declared  it  "  desirable  "  that  days  of  grace  should 
be  granted,  it  did  not  bind  the  signatories  of  the  Convention 
to  grant  them.  There  is  little  fear  that  states  will  use  their 
liberty  to  make  indiscriminate  seizures.  Owing  to  the  inter- 
national character  of  modern  trade  and  credit  the  blow  aimed 
at  the  enemy  would  fall  in  large  part  on  neutral  commerce ; 
and  no  national  government  desires  to  begin  a  war  by  offend- 
ing powerful  neighbors.  In  all  probability  the  practice  of 
the  last  fifty  years  will  still  be  followed.  Days  of  grace  will 
be  given,  longer  or  shorter  in  duration,  according  to  circum- 

1  German  White  Book,  Dec.  6,  1907,  p.  9. 


458  THE   LAWS   OF   WAR 

stances  and  the  presence  or  absence  of  a  generous  spirit.  And 
we  must  remember  that  even  when  seizure  is  made,  the  old 
severities  are  no  longer  allowed.  Speaking  generally,  the 
worst  that  can  happen  is  requisition  on  payment  of  compen- 
sation. In  one  case  only  is  confiscation  permitted,  and  that 
is  when  detained  merchantmen  show  by  their  build  that  they 
are  meant  to  be  converted  into  war-ships.  A  state  can  hardly 
be  expected  to  refrain  from  possessing  itself  of  its  enemy's 
prospective  cruisers  when  chance  has  placed  them  in  its 
hands.  The  difficulty  of  finding  any  plain  and  simple  test 
to  determine  whether  a  ship  of  commerce  is  intended  to  be 
adapted  for  war  will  in  all  probability  give  rise  to  much  con- 
troversy. But  in  spite  of  this  and  other  defects  it  seems 
clear  that  the  commerce  of  all  nations  will  gain  an  increase 
of  security  from  the  due  observance  of  the  rules  we  have  de- 
scribed. It  is  right,  however,  to  add  that  the  United  States 
have  declined  to  sign  the  Convention  on  the  ground  that  it 
is  retrograde  rather  than  progressive,  since  it  treats  the  grant 
of  days  of  grace  as  optional,  whereas  American  authority 
seems  disposed  to  hold  that  usage  has  made  them  compul- 
sory. But  it  may  be  doubted  whether  this  view  is  borne  out 
by  recent  events.  After  the  United  States  had  given  to 
Spain  in  1898  some  of  the  most  liberal  terms  on  record,  Rus- 
sia and  Japan  at  the  commencement  of  their  war  of  1904- 
1905  granted  to  each  other  unprecedentedly  meagre  advan- 
tages, the  Russian  period  of  grace  being  only  forty -eight  hours 
and  the  Japanese  not  more  than  a  full  week.1 

No  immunity  from  capture  has  been  given  by  Inter- 
national Law  to  public  vessels  driven  into  an  enemy's  port 
by  stress  of  weather.  There  are  a  few  instances  on  record 
where  a  chivalrous  enemy  has  refused  to  take  advantage  of 
distress  or  mishap,  but  there  are  more  where  seizure  has 
been  effected.2  Nor  does  there  seem  any  good  reason  of 

1  Higgins,  The,  Hague  Peace  Conferences,  pp.  301 ,  307  ;  Takahashi,  Inter- 
national Laic  applied  to  the  Russo-Japanese  War,  pp.  64-69. 

2  Halleck,  International  Law  (Baker's  4th  ed.),  vol.  II,  pp.  125,  126. 


WITH  REGARD  TO  ENEMY  PROPERTY  AT  SEA    459 

justice  or  humanity  why  .the  agents  of  a  state  should  deprive 
their  country  of  an  advantage  that  fortune  has  thrown  in 
her  way.  When  an  enemy  vessel  was  released  in  such  cir- 
cumstances as  we  have  described,  it  was  done  as  a  matter  of 
grace  and  favor,  not  because  there  was  any  obligation  to  do 
it.  The  same  may  be  said  of  mail-boats,  though,  as  we  shall 
see  in  the  next  section,  mail-bags  are  now  protected  by  a 
definite  rule  of  law.  Here  and  there  we  may  find  a  treaty 
between  two  states  for  the  exemption  from  capture  in  time 
of  war  of  the  vessels  employed  in  the  conveyance  of  their 
overseas  correspondence ;  but  such  agreements  are  not 
common.  Great  Britain  has  four  only,  Holland,  the  United 
States,  Belgium,  and  France,  being  the  other  parties.  Each 
of  these  Conventions  stipulates  that  the  arrangement  may 
be  brought  to  an  end  by  either  side  on  giving  notice  to  the 
other,  and  it  is  very  doubtful  whether  any  of  them  would 
stand  the  strain  of  a  war.  In  fact,  the  movement  in  favor 
of  exempting  social  and  commercial  correspondence  from  the 
severities  of  warfare  has  taken  the  direction  of  a  demand  for 
the  protection  of  the  communications  themselves  rather  than 
the  vehicles  which  carry  them.  Occasionally  neutrals  have 
attempted  to  obtain  for  their  mail  steamers  freedom  from 
belligerent  search;  but  in  no  case  has  absolute  immunity 
been  conceded.  Conditions  more  or  less  onerous  in  character 
have  always  been  insisted  on.  President  McKinley  in  his 
Proclamation  of  April  26,  1898,  at  the  beginning  of  the 
war  between  the  United  States  and  Spain,  declared  with 
regard  to  neutral  mail-boats  that  their  voyages  were  not  to 
be  interfered  with  "except  on  the  clearest  grounds  of  suspicion 
of  a  violation  of  law  in  respect  of  contraband  or  blockade"; 
and  in  1900,  during  the  Boer  War,  Lord  Salisbury  made  a 
somewhat  similar  declaration  to  Germany.  These  represent 
the  high-water  mark  of  concession,  and  it  will  be  seen  how 
far  they  fall  short  of  complete  immunity.1  The  Hague 

1  Lawrence,  War  and  Neutrality  in  the  Far  East,  2d.  ed.,  pp.  185-200, 


THE  LAWS  OF  WAR 

Convention,  which  grants  it  to  mails,  merely  provides  with 
regard  to  mail-boats  that  they  are  not  to  be  searched  "  except 
when  absolutely  necessary." J  The  restoration  of  the  personal 
effects  of  the  captain  and  crew  of  a  captured  vessel  is  some- 
times regarded  as  an  example  of  exemption.  But  it  de- 
pends entirely  on  the  good-will  of  the  captors  or  the  prize 
court,  and  can  no  more  be  claimed  as  a  right  than  the  other 
so-called  immunities  considered  in  this  paragraph.2 

§183 

We  will  now  pass  on  to  the  consideration  of 
Sea-borne  goods  of  the  enemy. 

The  Declaration  of  London  of  1909  lays  down  that  the 
national  character  of  goods  found  on  board  a  captured  vessel 
is  determined  by  the  national  character  of  their  owner.  If 
the  vessel  that  carries  them  is  enemy,  they  are  presumed  to 
be  enemy  in  the  absence  of  proof  of  neutral  character.  The 
enemy  character  clings  to  them  until  they  reach  their  des- 
tination, notwithstanding  any  transfer  to  a  neutral  owner 
effected  after  the  outbreak  of  hostilities  and  while  the  vessel 
is  on  her  voyage.  To  this  rule  there  is,  however,  one 
exception.  If,  before  the  capture  is  made,  the  enemy  owner 
becomes  bankrupt,  and  a  former  neutral  owner  exercises  a 
recognized  legal  right  to  recover  the  goods,  they  regain 
their  neutral  character.8 

Enemy  goods  found  on  board  enemy  ships  are  undoubtedly 
liable  to  capture,  though  there  are  a  few  exceptions  which 
will  be  described  almost  immediately.  Enemy  goods  found 
on  board  neutral  ships  must  now  be  regarded  as  free  from 
capture.  The  complications  caused  by  questions  of  blockade, 
contraband,  and  unneutral  service  will  be  considered  under 

1  Eleventh  Convention,  Article  2. 

2  Westlake,  International  Late,  part  II,  p.  133. 
8  Declaration  of  London,  Articles  67-60. 


WITH  REGARD  TO  ENEMY  PROPERTY  AT  SEA    461 

the  Law  of  Neutrality,  where  they  properly  belong.  In  all 
ordinary  cases  the  rule  is  that  the  flag  covers  the  cargo,  or, 
in  other  words,  that  enemy  merchandise  is  safe  when  laden 
on  board  a  neutral  vessel.  The  old  rule  of  the  Comolato  del 
Mare  gave  the  captors  a  right  to  seize  it,  though  the  ship 
which  carried  it  was  released  and  received  payment  for  its  ser- 
vices.1 But  the  movement  which  began  in  the  seventeenth 
century  in  favor  of  the  principle  summed  up  in  the  maxim 
"  free  ships,  free  goods"  gained  a  decisive  victory  in  1856, 
at  the  close  of  the  Crimean  War.  Its  object  was  practically 
attained  when  Great  Britain,  which  had  hitherto  supported 
the  older  rule,  agreed  to  substitute  the  new  one  for  it,  and 
signed  the  Declaration  of  Paris,  the  second  article  of  which 
set  forth  that  "  the  neutral  flag  covers  enemy's  goods  with 
the  exception  of  contraband  of  war."  Since  then  the  vast 
majority  of  civilized  states  have  given  their  formal  adhesion 
to  the  Declaration,  and  those  who  have  not  have  nevertheless 
observed  its  rules  as  belligerents,  and  accepted  the  benefit  of 
them  from  belligerents  when  neutral.  The  uninterrupted 
practice  of  more  than  fifty  years,  the  express  assent  pf  nearly 
every  civilized  state,  and  the  almost  unanimous  support  of 
jurists  make  the  articles,  including  the  second,  as  binding 
as  anything  in  International  Law  which  does  not  rest  on  the 
plainest  dictates  of  humanity.  We  come,  therefore,  to  this, 
that  in  cases  of  ordinary  trade  a  belligerent  may  seize  the 
goods  of  enemies  at  sea  only  when  they  are  navigating  in 
enemy  vessels. 

But  there  are  exceptions  even  here;  and  the  first  of  them 
is  the  postal  correspondence  of  the  enemy.  It  was  rendered 
inviolable  by  the  eleventh  of  the  Hague  Conventions  of  1907, 
whether  it  was  official  or  private,  whether  found  on  board  a 
neutral  or  an  enemy  ship.  But  the  immunity  was  not  ex- 
tended to  vessels  that  might  happen  to  carry  letters,  nor 
even  to  regular  mail  steamers,  though  it  was  agreed  that 

1  Pardessus,  Us  et  Coutumes  de  la  Mer,  vol.  II,  p.  292. 


462  THE  LAWS   OF   WAR 

these  latter  were  not  to  be  searched  "  except  when  absolutely 
necessary,  and  then  only  with  as  much  consideration  and  ex- 
pedition as  possible."  If  the  vessel  were  detained,  the  cor- 
respondence was  to  be  forwarded  by  the  captor  as  soon  as 
possible.  The  only  case  in  which  the  old  right  of  search, 
and,  if  need  be,  of  capture  was  retained  was  that  of  communi- 
cations proceeding  by  sea  to  and  from  a  blockaded  port. 
Russia  has  refrained  from  signing  this  Convention,  but  all 
the  other  powers  have  accepted  it.  Belligerents  are  now  able 
to  send  their  warlike  messages  by  submarine  cables  or  wireless 
telegraphy,  and  naturally  they  prefer  these  quick  and  compara- 
tively safe  methods  to  the  slower  and  more  dangerous  course 
of  forwarding  despatches  by  ocean-going  vessels.  While  this 
change  was  taking  place  on  the  one  hand,  on  the  other,  sea- 
borne correspondence  was  increasing  every  day,  owing  to  the 
growth  of  international  commerce,  and  the  extension  of  travel 
and  social  intercourse.  Finally  it  became  evident  that  the 
small  possible  gain  to  belligerents  by  interfering  with  the 
convenience  of  the  civilized  world  was  far  outweighed  by  the 
trouble  and  loss  that  the  interference  caused.  When* this  was 
borne  in  upon  rulers  they  were  willing  to  grant  immunity 
from  belligerent  capture  at  sea  to  mail-bags  and  letters. 

In  all  probability  books  and  works  of  art  in  course  of  convey- 
ance to  some  public  institution  in  the  enemy's  territory  would  now 
be  regarded  as  exempt  by  usage  from  confiscation.  In  the 
case  of  the  Marquis  de  Somarveles1  the  British  Vice-Admiralty 
Court  of  Halifax  in  Nova  Scotia  restored  in  1812  to  the  Acad- 
emy of  Arts  in  Philadelphia  a  cargo  of  paintings  and  prints 
captured  on  their  voyage  from  Italy  to  the  United  States. 
This  decision  has  often  been  mentioned  with  approval,  and 
seems  to  have  been  followed  during  the  American  Civil  War.2 
Article  56  of  the  Hague  Code  for  Land  Warfare  exempts 
from  seizure  by  troops  the  property  of  institutions  dedi- 


1  Stewart,  Vice- Admiralty  Reports,  p.  482. 
8  Westlake,  International  Law,  part  II,  p.  139. 


WITH    REGARD    TO    ENEMY    PROPERTY    AT    SEA         463 

cated  to  art  and  science;  and  there  can  be  little  doubt  that 
a  prize  court  of  to-day  would  extend  the  exemption  by  analogy 
to  property  found  at  sea,  especially  as  there  are  the  precedents 
we  have  mentioned  ready  to  be  quoted  in  support  of  such  a 
decision. 

Enemy  cargo  on  board  the  three  classes  of  enemy  merchantmen 
protected  from  confiscation  at  the  beginning  of  a  war  by  the  sixth 
of  the  Hague  Conventions  of  1907  was  accorded  a  similar  pro- 
tection by  the  same  Convention.  But  it  may  be  detained 
without  compensation  if  it  is  restored  at  the  end  of  the  war, 
or  it  may  be  requisitioned  with  or  without  the  ship  on  pay- 
ment of  compensation.  The  reservation  made  by  Germany 
and  Russia  with  regard  to  certain  vessels  applied  to  their 
cargoes  also.  * 

The  Hague  Convention  of  1907  on  Red  Cross  work  at  sea 
allows  a  belligerent  who  captures  a  war-ship  of  his  enemy  to 
appropriate  the  hospital  appliances  and  stores  in  use  in  her 
sick  bay,  but  imposes  on  him  the  obligation  of  applying  them 
to  their  original  purpose  as  long  as  necessary  or  substituting 
for  them  other  adequate  provision.2 

§184 

When  a  ship  is  seized  by  a  belligerent,  International  Law 
allows  her  master  to  come  to  an  agreement  with  the  captors 
for  ransom.     If  the  bargain  is  effected,  they  re- 
ceive from  him  one  of  his  crew  as  a  hostage  and  ^g^*106  °f 
a  document  called  a  ransom  bill,  which  covenants 
for  the  payment  to  them  of  a  certain  sum  within  a  given  time. 
In  return  the  ship  is  set  at  liberty  along  with  her  crew,  and  the 
master  is  allowed  to  take  her  to  a  port  of  his  own  country  by  a 
prescribed  course  and  within  a  fixed  period.  During  this  voyage 
she  is  protected  by  a  copy  of  the  ransom  bill,  which  is  retained  by 

1  See  §  182. 

2  Convention  for  the  Adaptation  of  the  Principles  of  the  Geneva  Conven- 
tion to  Maritime  War,  Article  7. 


464  THE  LAWS   OF   WAR 

the  master  and  has  the  effect  of  a  safe-conduct.  But  the  protec- 
tion vanishes  if  the  vessel  deviates  from  the  prescribed  course 
or  exceeds  the  stipulated  time  without  urgent  necessity.  She 
is  then  liable  to  capture  by  any  ship  of  the  enemy  or  his  allies, 
and  should  she  be  taken  a  second  time  the  first  captor  obtains 
the  ransom  money  from  the  proceeds  of  her  sale  after  con- 
demnation, while  the  second  has  to  be  content  with  the  bal- 
ance. The  capture  of  her  captors  by  a  cruiser  of  her  own 
state  or  its  allies  has  the  effect  of  nullifying  the  contract  of 
ransom,  provided  that  the  ransom  bill  and  the  hostage  who 
is  usually  taken  as  collateral  security  are  on  board  at  the 
time.  The  courts  of  most  states  look  upon  ransom  bills  as 
contracts  of  necessity  and  allow  the  captor,  though  an  enemy, 
to  sue  directly  for  the  sum  agreed  upon,  if  the  owners  of  the 
ship  and  cargo  decline  to  pay  it. 

Great  Britain  has  prohibited  the  practice  of  ransom  for 
more  than  a  century.  It  savors  of  tenderness  to  private 
interests  at  the  expense  of  the  interest  of  the  state.  It 
tends  to  check  the  destruction  of  the  enemy's  mercantile 
marine  and  the  consequent  diminution  of  his  resources  for 
war,  while  at  the  same  time  it  makes  merchantmen  less  anxious 
to  escape  capture  and  therefore  less  keen  and  self-reliant  in 
their  efforts  after  safety.  It  helps  to  foster  the  idea  that  the 
end  of  war  is  the  enrichment  of  individuals  by  prize  money 
rather  than  the  redress  of  national  grievances.  British  law 
gives  power  to  the  Crown  to  make  by  Order  in  Council  what 
regulations  it  pleases  with  regard  to  English  merchantmen 
captured  by  an  enemy ;  but  no  permission  to  ransom  them 
has  been  granted.  The  British  example  has  been  followed 
by  the  Baltic  powers ;  but  France  and  the  United  States  put 
no  obstacle  in  the  way  of  their  officers  and  citizens  who  may 
wish  to  enter  into  contracts  of  ransom.1 

1  Hall,  International  Law,  5th  ed.,  p.  460,  note;  Moore,  International 
Law  Digest,  vol.  VII,  p.  633. 


WITH  REGARD   TO   ENEMY   PROPERTY   AT   SEA         465 

§  185 

When  property  captured  by  the  enemy  is  recaptured  at 
sea  or  in  harbor,  it  is  generally  restored  to  the  original  owners 
by  what  is  called,  on  the  analogy  of  those  rules 

t    T>  T  U-    -U  I        f    A  j     Recapture  at  sea 

ot  Roman  Law  which  gave  back  to  persons  and  andthe^w* post- 
things  their  original  position  on  their  rescue 
from  the  power  of  the  enemy,  jus  postliminii,  or  postliminy.1 
During  the  formative  period  of  modern  International  Law 
there  was  some  doubt  as  to  the  application  of  this  principle. 
The  Consolato  del  Mare  is  the  only  mediaeval  maritime  code 
that  mentions  restoration  after  recapture,  and  its  references 
to  the  subject  are  obscurely  worded.2  Grotius  hardly  ven- 
tures to  decide  whether  ships  can  claim  the  benefit  of  post- 
liminy.3 The  first  clear  and  undoubted  instance  of  its  exten- 
sion to  them  as  a  matter  of  state  policy  occurred  in  1584, 
when  the  French  Government  directed  that  vessels  recap- 
tured within  twenty-four  hours  of  their  capture  by  the  enemy 
should  be  restored  to  their  original  owners.4  The  British 
in  1649  adopted  a  rule  practically  identical  with  their  pres- 
ent usage,  and  the  Dutch  in  1666  ordered  restitution  if  the 
recapture  was  effected  before  the  vessel  had  been  sold  by 
the  captors  and  sent  on  a  fresh  voyage.6  Other  states  soon 
followed  this  example,  and  the  practice  of  restoration  became 
general.  There  is,  however,  one  exception  to  its  generality. 
If  the  recaptured  vessel  is  duly  set  forth  as  a  ship-of-war 
by  the  enemy's  authorities,  while  they  have  it  under  their 
control,  it  is  not  given  back  to  the  original  owners,  but  be- 
comes the  prize  of  the  recaptors.  No  uniform  rule  exists  as 
to  neutral  vessels  captured  by  one  belligerent  and  recaptured 
by  the  other.  The  prize  courts  of  the  recaptors  would,  of 

1  Justinian,  Digest,  bk.  XLIX,  tit.  xv. 

2  Phillimore,  Commentaries,  part  X,  ch.  vi,  §  409. 
8  De  Jure  Belli  ac  Pact's,  bk.  Ill,  ch.  ix,  15-19. 

*  Robinson,  Collectanea  Maritime,  p.  116. 

6  Bynkershoek,  Quaestiones  Juris  Publici,  bk.  I,  ch.  4. 


466  THE   LAWS   OF   WAR 

course,  apply  their  own  law,  but  if  an  exorbitant  salvage 
were  given,  and  still  more  if  such  vessels  were  condemned  as 
good  prize,  the  government  of  the  neutral  would  make  its 
voice  heard  in  emphatic  remonstrance,  and  might  resort  to 
measures  of  retaliation.  Generally  an  attempt  is  made  to  do 
substantial  justice.  Great  Britain  restores  to  the  neutral 
owners  without  salvage  if  the  original  capture  was  effected 
under  such  circumstances  that  it  may  be  presumed  no  prize 
court  of  her  enemy  would  have  decreed  condemnation,  but  if 
confiscation  was  practically  certain,  her  courts  will  grant  a 
reasonable  salvage.1  Allies  in  a  war  apply  to  each  other  the 
law  of  the  claimant's  country  at  the  time  of  the  recapture, 
and  if  one  of  them  resorts  to  a  less  liberal  rule,  the  others 
treat  his  subjects  as  he  treats  theirs. 

But  in  the  vast  majority  of  recaptures  the  recovered  prop- 
erty is  owned  by  subjects  of  the  state  whose  cruisers  have 
rescued  it  from  the  enemy.  In  such  cases  the  conditions  of 
restoration,  and  the  amount  to  be  paid  to  the  recaptors  as 
salvage,  are  determined  by  the  law  of  the  country  to  which 
both  the  original  owners  and  the  recaptors  belong.  States 
have  varied  considerably  in  their  ideas  about  these  matters, 
and  the  result  is  a  great  diversity  of  rules.  The  United  States 
have  granted  restoration  of  the  property  to  the  original  owners 
on  payment  of  a  salvage  awarded  by  their  courts,  if  the  re- 
capture is  effected  before  condemnation  of  the  ship  in  a  reg- 
ularly constituted  prize  court  of  the  enemy.2  France  restores 
on  payment  of  a  thirtieth  as  salvage  if  the  recapture  was 
effected  within  twenty-four  hours  of  the  original  seizure, 
but  if  a  longer  time  has  elapsed  a  salvage  of  one-tenth  is 
given.3  The  English  rule  is  the  most  liberal  of  any.  It  is 
embodied  in  the  Naval  Prize  Act  of  1864,  but  has  been  the  same 
in  essentials  for  more  than  two  hundred  and  fifty  years. 

1  See  the   War  Onskan  and  the  Carlotta  (C.  Robinson,   Admiralty  Re- 
ports, vol.  II,  p.  299,  and  vol.  V,  p.  64). 

2  Revised  Statutes,  §  4652. 

8  Hall,  International  Law,  5th  ed.,  p.  494, 


WITH  REGARD  TO  ENEMY  PROPERTY  AT  SEA    467 

It  provides  for  restitution  if  the  recapture  is  effected  at  any 
time  during  the  war  that  witnessed  the  capture,  and  decrees 
a  normal  salvage  of  one-eighth,  which  may  be  increased  to  a 
fourth  if  the  service  has  been  one  of  special  difficulty  and 
danger.  Several  states  have  adopted  the  British  usage;  but 
there  is  very  little  uniformity  in  the  matter,  the  different 
treatment  accorded  to  different  countries  in  consequence  of 
treaty  stipulations,  and  divergent  views  as  to  the  exact  mo- 
ment when  a  good  title  is  obtained  by  an  enemy  captor,  caus- 
ing numerous  variations  in  practice.  In  the  days  when 
privateering  flourished,  those  who  engaged  in  it  generally 
received  more  salvage  than  the  regular  officers  and  crews  of 
the  state's  navy ;  and  at  the  present  time  the  law  of  most 
maritime  nations  grants  a  larger  share  than  usual  of  the 
rescued  property  when  it  is  recaptured  from  pirates.  But  if 
the  crew  of  a  captured  ship  rise  upon  their  captors  and  re- 
take the  vessel,  they  cannot  substantiate  a  claim  to  salvage; 
for  it  is  held  that  their  action  is  no  more  than  a  continuation 
of  that  resistance  to  the  enemy's  force  which  it  is  their  duty 
to  offer  whenever  there  is  a  chance  of  success.  If  however 
any  members  of  the  crew  or  passengers  are  not  subjects  of 
the  state  whose  flag  the  vessel  carries,  and  do  not  belong  to  a 
country  allied  with  it  in  the  war,  salvage  is  due  to  them  be- 
cause they  were  in  no  way  bound  to  assist  in  the  rescue,  and 
consequently  their  aid  deserves  a  substantial  recompense. 
This  doctrine  was  laid  down  by  Lord  Stowell  in  the  case  of 
the  Two  Friends,1  an  American  vessel  which  had  been  taken 
by  the  French  in  the  course  of  the  hostilities  between  the 
United  States  and  France  in  1799.  She  was  recaptured  by 
the  crew  with  the  assistance  of  a  few  British  seamen  who  were 
working  their  passage  to  London  in  her,  and  the  court  decided 
in  favor  of  their  claim  to  remuneration.  A  land  force  may 
share  salvage  if  the  recaptures  were  due  to  operations  carried 
on  by  it  and  a  naval  force  acting  together.  It  may  even 

1  Robinson,  Admiralty  Reports,  vol.  I,  p.  271. 


468  THE   LAWS   OF   WAR 

obtain  salvage  when  acting  alone,  in  a  case  where  the  result 
of  its  military  operations  against  an  enemy's  port  is  to  cause 
the  surrender  of  the  place  with  vessels  taken  by  the  enemy 
from  its  compatriots  lying  in  the  harbor. 


§  186 

We  have  discussed  the  rights  of  capture  possessed  by  bel- 
ligerents as  far  as  it  is  possible  to  do  so  without  introducing 
The  right  of  questions  connected  with  neutrality.  But  in 
search.  order  that  belligerents  may  be  able  to  exercise 

these  rights,  it  is  necessary  that  they  should  possess  what  we 
may  call  the  ancillary  right  to  stop,  detain,  and  overhaul  mer- 
chantmen, in  order  to  discover  whether  the  ships  themselves 
or  the  goods  they  carry  are  liable  to  seizure  and  detention. 
This  is  called  indifferently  the  right  of  search  or  the  right 
of  visit  and  search.  Apart  from  treaty,  there  is  no  right  of 
visit  without  a  right  to  examine  the  papers  of  the  ship 
visited  and  rummage  among  its  cargo  if  they  are  not  satis- 
factory, and  no  right  of  search  without  a  right  to  detain  the 
vessel  searched  if  a  thorough  examination  of  it  reveals  cir- 
cumstances of  grave  suspicion. 

All  jurists  agree  that  the  right  of  search  belongs  to  bel- 
ligerents, and  to  belligerents  only,  except  in  the  rare  cases 
when  it  is  applied  to  suspected  pirates  under  the  common  law 
of  nations,  and  to  suspected  slaves  under  the  provisions  of  a 
treaty.  It  is,  as  Judge  Story  said  in  the  case  of  the  Marianna 
Flora?-  "  allowed  by  the  general  consent  of  nations  in  time 
of  war  and  limited  to  those  occasions  " ;  and  his  statement 
may  be  regarded  as  true,  since  the  abandonment  by  Great 
Britain  in  1858  of  her  claim  to  a  general  right  of  visit  in 
time  of  peace  in  order  to  discover  the  real  nationality  of 
vessels  suspected  of  being  engaged  in  the  slave  trade.  The 

1  Wheaton,  Reports  of  the  Supreme  Court,  vol.  XI,  p.  1;  Scott,  Cases  on 
International  Law,  p.  837. 


WITH   REGARD    TO   ENEMY   PROPERTY   AT   SEA         469 

exceptions  introduced  by  convention  J  are  themselves  proof 
that  nothing  but  express  agreement  can  justify  search  in 
time  of  peace,  unless  it  is  directed  against  pirates.  The 
right  can  be  exercised  on  merchantmen  only.  They  are 
bound  to  submit  to  search  from  a  lawfully  commissioned 
belligerent  cruiser.  Resistance  to  it  will  bring  down  certain 
capture  and  condemnation  upon  a  neutral  ship  otherwise  in- 
nocent. An  enemy  merchantman  may  fight  when  attacked, 
but  unless  it  can  succeed  in  beating  off  the  foe  its  resistance 
will  put  it  in  a  worse  position  than  before.  A  neutral  mer- 
chantman violates  International  Law  if  it  makes  any  attempt 
to  repel  belligerent  search  by  force  of  arms.  Success  may 
save  it  for  the  moment,  but  not  for  long.  An  international 
question  will  be  raised  between  its  country  and  the  injured 
belligerent  ;  and,  unless  its  government  wishes  to  provoke 
complications,  some  kind  of  punishment  will  fall  upon  its 
owners  for  its  unlawful  proceeding.  While,  if  it  fails,  the 
Sixty-third  Article  of  the  Declaration  of  London  of  1909  de- 
nounces against  it  the  penalty  of  confiscation,  which  is  to 
be  shared  by  all  property  on  board  belonging  to  the  master 
or  owner.  As  to  cargo,  it  is  to  be  treated  as  if  it  were  laden 
on  an  enemy  vessel.  That  is  to  say,  neutral  goods  will  be 
released,  and  enemy  goods  condemned. 

But  though  neutral  ships  of  commerce  must  submit  to  bel- 
ligerent search,  neutral  men-of-war  are  free  from  it.  Any 
attempt  to  enforce  it  against  them  would  be  a  gross  outrage. 
So  long  ago  as  the  beginning  of  the  last  century  the  British 
Government  disavowed  the  act  of  Admiral  Berkeley  in  order- 
ing the  vessels  of  his  squadron  to  search  the  American  ship- 
of-war  Chesapeake  for  deserters  from  the  royal  navy.  In 
consequence  of  this  order  a  conflict  took  place  between  the 
Chesapeake  and  the  Leopard,  and  after  the  surrender  of  the 
former,  four  seamen  were  taken  out  of  her.  These  unjusti- 
fiable and  high-handed  proceedings  nearly  led  to  a  war  between 

i  See  §  103. 


470  THE   LAWS   OF   WAR 

the  two  countries  in  1807.  It  was  averted  by  the  disavowal 
of  the  British  Government,  and  its  tender  of  indemnity  to 
those  American  citizens  who  were  injured  in  the  action  and 
the  families  of  those  who  were  slain  ;  but  unfortunately  the 
dispute  as  to  the  right  of  impressment  still  went  on,  and  be- 
came the  chief  cause  of  the  War  of  1812. x 

A  belligerent  vessel  may  chasa  under  false  colors  or  with- 
out colors  of  any  kind ;  but  before  it  commences  the  actual 
work  of  visit  and  search  it  must  hoist  its  country's  flag.  If 
hailing  is  impossible,  or  if  the  suspected  vessel  takes  no 
notice  of  it,  the  chasing  cruiser  may  signal  her  to  bring  to 
by  using  blank  cartridge,  and  then,  if  necessary,  sending  a 
shot  across  her  bows.  This  is  called  firing  the  semonce  or 
affirming  gun.  Any  other  signal  likely  to  be  understood  is 
equally  lawful,  but  some  unmistakable  summons  is  neces- 
sary. Not  till  it  has  been  given  and  disregarded  is  the  use 
of  force  allowed.  Into  the  incidents  of  a  conflict  we  need 
not  go.  They  have  nothing  in  common  with  the  procedure 
of  a  search.  Assuming  that  the  summons  of  the  belligerent 
cruiser  is  obeyed,  the  next  step  taken  by  her  commander  is 
to  send  an  officer  or  officers  in  uniform  on  board  the  vessel  to 
be  searched.  The  visiting  officer  should  question  the  master 
of  the  vessel  and  examine  her  papers.  If  any  circumstances 
of  suspicion  are  revealed  by  his  examination,  but  not  other- 
wise, he  is  at  liberty  to  call  his  boat's  crew  on  board  and 
order  them  to  make  a  thorough  search  of  the  vessel.  Should 
the  search  confirm  the  suspicions,  the  commander  of  the 
cruiser  may  take  possession  of  the  ship,  secure  her  papers, 
and  detain  her  master  and  crew.  Throughout  his  proceed- 
ings he  is  bound  to  use  courtesy  and  consideration,  and  to 
carry  on  the  search  with  as  little  disturbance  as  possible  of 
the  interior  economy  or  navigation  of  the  suspected  vessel. 
The  regular  course  is  to  send  her  to  the  most  accessible 
prize  court  of  his  own  state  for  adjudication.  For  this  pur- 

1  Moore,  International  Law  Digest,  vol.  II,  pp.  991-994,  vol.  VI,  p.  1035. 


WITH  REGARD  TO  ENEMY  PROPERTY  AT  SEA    471 

pose  a  prize  crew  is  placed  on  board,  with  orders  to  take  her  to 
the  port  where  such  a  court  is  sitting.  Her  master  and  sea- 
men may  be  invited  to  assist  in  her  navigation,  but  they  can- 
not be  compelled  to  do  so.  A  commanding  officer  who 
cannot  spare  a  prize  crew  may  order  an  enemy  merchant- 
man to  haul  down  her  flag  and  follow  him  on  pain  of  being 
sunk  by  gun  fire  or  torpedo ;  but  he  has  no  right  to  subject 
a  neutral  ship  to  such  treatment.  If,  on  trial  by  the  prize 
court,  the  grounds  on  which  the  capture  was  effected  turn 
out  to  be  good,  condemnation  will  ensue,  and  by  the  law  of 
most  countries  the  captors  will  receive  the  proceeds  of  the 
sale  of  the  captured  property  in  the  form  of  prize  money. 
If  the  evidence  against  the  vessel  is  not  conclusive,  though 
there  are  circumstances  of  just  and  reasonable  suspicion, 
she  will  be  released,  but  her  owners  will  have  to  bear  the 
expense  of  detention  and  delay.  But  if  the  capture  was 
effected  on  frivolous  and  foolish  grounds,  the  parties  inter- 
ested have  a  right  to  compensation. 1  And  the  same  rule 
holds  good  in  the  more  difficult  matter  of  the  treatment  of 
vessels  suspected  of  piracy  by  the  cruisers  of  non-belligerent 
powers.  Being  at  peace,  they  have  no  right  to  search  unless 
the  ship  they  have  in  view  is  really  a  pirate,  in  which  case 
their  right  is  a  right  to  capture.  But  they  may  be  unable  to 
tell  whether  the  right  to  seize  the  vessel  exists  until  they 
have  visited  and  overhauled  her.  They  must,  therefore,  be 
guided  by  circumstances.  Should  the  information  they  have 
received,  and  the  behavior  of  the  vessel  when  approached,  give 
rise  to  reasonable  suspicion  that  she  is  a  pirate,  their  com- 
manders are  not  liable  to  damages  for  seizing  her,  even  if  it 
should  turn  out  that  her  errand  was  perfectly  lawful.  But 
if  they  have  made  an  inexcusable  mistake,  they  must  suffer 
for  it.  On  the  other  hand,  should  the  vessel  be  really  a 
pirate,  their  action  is  lawful  from  the  beginning  and  they 
have  performed  a  meritorious  service.2 

1  Declaration  of  London  of  1909,  Article  64. 

2  See  the  case  of  the  Marianna  Flora,  cited  at  the  beginning  of  the  section. 


472  THE  LAWS   OF   WAR 

The  object  of  the  procedure  we  have  just  sketched  is  to 
secure  belligerents  against  evasion  of  their  right  of  capture, 
and  at  the  same  time  protect  neutrals  from  vexatious  inter- 
ference with  their  sea-borne  commerce.  The  further  limita- 
tions which  some  writers1  have  striven  to  impose  on  the 
action  of  searching  officers  have  not  been  accepted  by  the 
great  body  of  maritime  states,  and  find  no  place  in  modern 
International  Law.  But  it  is  different  with  restrictions  on 
the  right  itself  as  distinct  from  the  mode  of  its  enforcement. 
Even  when  neutral  vessels  had  not  rendered  themselves 
liable  to  detention  and  condemnation,  they  suffered  so  much 
annoyance  and  loss  from  belligerent  search  that  their  govern- 
ments naturally  endeavored  to  minimize  the  opportunities 
of  subjecting  them  to  it.  Hence  arose  a  persistent  and  in 
the  end  successful  attempt  to  secure  freedom  from  visit  and 
search  for  neutral  ships  of  commerce  sailing  under  the  escort 
of  ships  of  war  of  their  own  nationality.  Great  Britain  re- 
sisted for  a  long  time  a  desire  which  gradually  became  uni- 
versal. At  last  in  the  Declaration  of  London  of  1909  she 
conceded  the  point  at  issue.  We  shall  consider  the  matter 
under  the  head  of  Convoy  2  when  we  deal  with  the  Law  of 
Neutrality.  But  the  changed  conditions  of  commerce  have 
made  further  advances  necessary.  While  the  amount  of 
mercantile  tonnage  at  sea  is  increasing  enormously  with 
the  growth  of  international  trade,  the  number  of  ocean- 
going merchantmen  afloat  is  actually  decreasing.  Huge 
cargo-boats  are  built,  which  carry  thousands  of  tons  of 
merchandise  belonging  to  shippers  of  many  nationalities. 
Craft  such  as  these  cannot  be  searched  at  sea  in  a  few 
hours,  as  was  the  case  with  the  much  smaller  vessels  of 
fifty  years  ago.  The  belligerent  must  exercise  his  right 
to  take  them  into  one  of  his  own  ports,  and  there  employ 
gangs  of  men  to  empty  their  spacious  holds.  This  means 
long  delay,  and  delay  means  ruinous  loss  to  shippers.  Even 

1  E.g.  Hautefeuille,  Droits  des  Nations  Neutres,  tit.  ix,  ch.  i. 
*  See  §  244. 


WITH   REGARD   TO   ENEMY  PROPERTY   AT   SEA         473 

if  nothing  of  a  compromising  character  is  found,  and  in  the 
end  the  ship  and  cargo  are  released,  a  large  fine  will  have 
been  inflicted  on  innocent  people.  The  Boer  War  afforded 
some  cases  in  point.  On  December  29,  1899,  the  German 
mail  steamer,  Sundesrath,  was  brought  into  the  port  of  Dur- 
ban by  a  British  cruiser  on  suspicion  of  carrying  contraband 
of  war  and  volunteers  for  the  Boer  army.  She  was  searched 
for  nine  days,  and  then  released  on  the  ground  that  no  con- 
traband had  been  found.  The  Herzog  went  through  a  some- 
what similar  experience,  but  was  released  after  detention  in 
port  for  three  days.  The  General  remained  six  days  at 
Aden,  during  which  time  twelve  hundred  tons  of  cargo 
were  first  removed  and  then  replaced.  All  these  vessels 
were  bound  for  Lorenzo  Marques,  a  neutral  Portuguese  port 
in  Delagoa  Bay,  whence  the  Transvaal  Government  drew 
warlike  supplies  over  the  railway  connecting  it  with  their 
capital,  Pretoria.  The  controversy  which  immediately  arose 
between  Great  Britain  and  Germany  was,  therefore,  compli- 
cated by  references  to  the  question  of  the  soundness  of  the 
doctrine  of  continuous  voyages,  which  we  shall  discuss  in 
chapter  vi  of  part  IV.  We  are  concerned  now  with  the 
vast  extension  in  modern  times  of  the  inconveniences  and 
losses  caused  to  neutrals  by  belligerent  search.  Great  Brit- 
ain did  not  exceed  her  strict  legal  right  by  one  iota.  The 
question  whether  the  suspicions  that  caused  her  to  detain 
the  German  steamers  were  correct  was  never  threshed  out  in 
a  prize  court.  But  the  mere  preliminaries  of  a  trial  roused 
a  storm  of  indignation  in  Germany,  and  seriously  embittered 
the  relations  between  the  two  countries.  The  release  of  the 
vessels  was  effected  by  administrative  order,  and  the  British 
Government  paid  an  indemnity  of  £20,000  for  the  injurious 
exercise  of  an  undoubted  right.1  It  is  clear  from  the  bare 
recital  of  these  facts  that  in  any  future  naval  struggle  carried 
on  by  powerful  maritime  states  the  position  of  neutrals  pos- 

1  For  the  facts  and  correspondence  see  British  Parliamentary  Papers,  Africa, 
No.  1  (1900). 


474  THE  LAWS  OF   WAR 

sessed  of  a  great  mercantile  marine  will  be  intolerable.  The 
only  way  of  escape  is  to  modify  the  right  of  search  to  such 
an  extent  that  belligerents  may  obtain  reasonable  assurance 
of  the  innocence  of  harmless  cargoes,  without  inflicting  on 
neutrals  the  ruinous  and  humiliating  process  of  deviation  to 
a  belligerent  port  and  a  complete  overhaul  therein  of  all  the 
vessel  contains.  The  continuance  of  the  existing  state  of 
things  involves  grave  danger  of  a  great  extension  of  any 
naval  war  that  may  break  out  in  the  near  future.  It  is 
worthy  of  consideration  whether  some  system  of  official  cer- 
tificates could  not  be  devised,  whereby  neutral  vessels  could 
carry,  if  they  chose,  satisfactory  assurances  that  their  pas- 
sengers and  cargoes  consisted  only  of  the  persons  and  goods 
set  forth  and  described  in  their  papers.  A  visiting  bellig- 
erent officer  could  then  decide  whether  to  effect  a  capture 
or  not,  without  the  need  of  a  preliminary  search. 

§  187 

We  have  had  occasion  in  the  preceding  pages  to  mention 
ships'  papers  on  several  occasions  ;  but  we  have  not  yet  ex- 
plained what  they  are,  and  it  will  be  convenient 

Ships'  papers. 

to  do  so  now.  International  Law  requires  every 
merchant  vessel  to  carry  certain  documents  as  evidence  of 
her  nationality,  the  course  of  her  voyage,  and  the  nature  and 
destination  of  her  cargo.  She  should  also  have  on  board 
written  evidence  of  the  ownership  of  both  vessel  and  cargo, 
a  muster  roll  of  her  crew,  and  full  evidence  as  to  any  contract 
concerning  the  letting  and  hiring  of  the  vessel  and  the  de- 
livery of  the  goods  on  board.  The  law  of  each  maritime 
country  fixes  for  its  merchantmen  the  exact  form  and  num- 
ber of  these  papers  ;  but  they  must  always  indicate  the  own- 
ership of  cargo  and  vessel,  and  specify  her  nationality  and 
destination.  Great  Britain  requires  a  certificate  of  registry, 
which  describes  the  ship  minutely  and  gives  the  names  of 
her  owner  arid  her  master.  In  addition  a  British  vessel 


WITH   REGARD   TO   ENEMY   PROPERTY   AT   SEA         475 

should  have  a  muster  roll  of  her  crew,  shipping  articles,  an 
official  log-book,  a  ship's  log-book,  a  manifest  of  cargo,  the 
bills  of  lading,  and  the  charter  party  if  the  vessel  is  hired. 
The  list  of  the  United  States  is  almost  the  same,  except  for 
the  addition  of  a  bill  of  health  and  the  omission  of  bills  of 
lading.  The  law  of  Germany  demands  a  certificate  of 
registry,  a  certificate  of  nationality,  and  a  certificate  of  meas- 
urement, the  three  documents  giving  between  them  about 
the  same  information  as  is  given  by  the  British  and  American 
certificates  of  registry.  Further,  a  German  vessel  should 
carry  a  muster  roll,  a  log-book,  a  manifest  of  cargo,  the  bills 
of  lading,  and  the  charter  party  if  necessary.  The  French 
law  prescribes  a  certificate  of  nationality,  a  sailing  license,  a 
muster  roll,  an  inventory  of  the  ship's  fittings  and  stores,  a 
log-book,  a  manifest  of  cargo,  the  bills  of  lading,  and  a  charter 
party  if  needed.  These  four  lists  may  be  taken  as  typical, 
and  it  is  obvious  that  they  all  provide  for  the  setting  forth 
of  the  same  essential  facts,  though  under  slightly  different 
heads.  The  information  is  what  International  Law  de- 
mands. It  leaves  the  forms  and  modes  of  giving -it  to  be 
settled  by  each  maritime  state  for  its  own  vessels. 

The  absence  of  the  proper  papers,  or  gross  irregularities, 
omissions,  or  inconsistencies  in  them,  will  justify  detention 
by  a  belligerent  cruiser,  as  will  also  the  presence  of  false 
papers.  What  is  technically  called  spoliation  of  papers 
signifies  the  wilful  destruction  of  documents  by  throwing 
them  overboard  during  a  chase,  or  by  any  other  means. 
The  British  and  American  practice  is  to  regard  it  as  good 
ground  for  the  capture  of  the  vessel,  but  not  necessarily 
good  ground  for  condemnation.  It  affords  a  strong  pre- 
sumption of  her  guilt,  but  not  a  presumption  which  cannot 
be  rebutted  by  evidence  to  the  contrary.  This  view  seems 
now  to  be  general  among  maritime  states.1 

1  Halleck,  International  Law,  Baker's  4th  ed.,  vol.  II,  p.  301 ;  General 
Report  Presented  to  the  Naval  Conference  of  London,  ch.  ix,  for  which  see 
British  Parliamentary  Papers,  Miscellaneous,  No.  4  (1909),  p.  65. 


476  THE  LAWS   OF   WAR 

§  188 

As  between  belligerents  superior  force  is  its  own  justifica- 
tion. If  enemy  property  is  captured  at  sea  under  circum- 
The  nature  of  stances  that  render  it  liable  to  hostile  seizure 
prize  courts  and  and  detention  by  the  laws  of  war,  the  rights  of 

the  responsibility  J 

of  the  state  for       the  original  owners  are  destroyed,  though,  as  we 

their  decisions.          ••  .  •.  ,  •,  •        i   i_      ^i. 

have  recently  seen,  they  may  be  revived  by  the 
jus  postliminii  in  cases  of  recapture.  But  sometimes  it  is 
doubtful  whether  certain  property  really  belongs  to  an  enemy 
owner,  or  whether  the  capture  was  effected  in  a  place  where 
warlike  operations  may  be  carried  on ;  and  it  is  always  neces- 
sary to  determine  the  exact  extent  of  the  proprietary  rights 
accruing  to  the  individual  captors.  It  follows,  therefore, 
that  the  intervention  of  a  court  is  highly  desirable,  even  in 
cases  where  belligerent  property,  or  what  is  believed  to  be 
such,  is  the  only  subject-matter  concerned.  But  desirability 
becomes  necessity  when  neutral  rights  and  neutral  claims  are 
involved.  Force  cannot  control  the  relations  of  states  at  war 
with  the  subjects  of  powers  that  take  no  part  in  the  contest. 
They  may  be  condemned  to  lose  their  property  under  certain 
circumstances,  but  the  mere  fact  that  a  belligerent  has  suc- 
ceeded in  obtaining  and  keeping  possession  of  it  does  not 
give  him  a  right  to  it.  The  question  whether  he  has  such  a 
right  or  not  is  a  question  of  law  to  be  settled  by  judicial  pro- 
ceedings. Accordingly,  all  civilized  belligerents  establish 
prize  courts  for  the  protection  of  neutral  subjects  and  the 
proper  adjustment  of  the  claims  of  captors.  When  the  ser- 
vants of  a  state  seize  enemy  property  at  sea,  in  strictness  of 
law  they  seize  it  for  their  country,  and  not  for  themselves. 
Yet  the  law  of  every  nation  but  one  gives  the  whole  or  a  por- 
tion of  it  to  the  captors  according  to  some  scale  of  reward 
fixed  by  public  authority.  The  United  States  is  the  excep- 
tion, Congress  having  abolished  prize-money  in  1903. 1  In 
1864  the  British  Parliament  legislated  on  the  subject  in  the 

1  Moore,  International  Law  Digest,  vol.  VII,  p.  643. 


WITH  REGARD  TO  ENEMY  PROPERTY  AT  SEA    477 

Naval  Prize  Act,  which  expressly  declares  that  captors  "shall 
continue  to  take  only  the  interest  (if  any)  in  the  proceeds  of 
prizes  as  may  be  from  time  to  time  granted  to  them  by  the 
Crown."  But  it  is  and  has  been  the  invariable  rule  of  the 
Crown  in  modern  times  to  surrender  the  entire  proceeds  to 
the  officers  and  men  engaged  in  the  capture.  The  general 
practice  of  prize  courts  is  to  order  a  sale  of  the  vessel  or  goods 
on  condemnation ;  and  the  sum  thus  realized  is  divided 
among  the  captors. 

Prize  courts  are  municipal  tribunals  set  up  by  belligerent 
states  in  their  own  territory,  in  territory  under  their  military 
occupation,  or  in  territory  belonging  to  an  ally  in  the  war.1 
In  the  last  case  the  permission  of  the  ally  must  be  obtained 
beforehand.  But  a  neutral  cannot  allow  the  establishment 
of  a  belligerent  prize  court  in  its  territory  without  a  grave 
breach  of  the  duties  prescribed  by  neutrality  ;  and  if  one  of 
the  parties  to  the  war  attempts  to  set  up  such  courts  within 
the  area  of  neutral  jurisdiction,  he  commits  a  gross  outrage 
upon  the  neutral's  independence  by  his  endeavor  to  exercise 
powers  of  sovereignty  of  the  highest  kind  in  the  dominions 
of  a  friendly  and  peaceful  nation.  Should  such  an  aggression 
take  place,  the  state  that  suffers  from  it  may  resent  it  by 
war,  if  diplomatic  pressure  fails  to  obtain  redress.  Submis- 
sion on  the  part  of  the  neutral  government  would  bring  upon 
it  reclamations  and  possibly  hostilities  from  the  belligerent 
that  suffered  through  its  subservience.  This  was  clearly 
seen  by  Washington  when,  in  1793,  Genet,  the  Minister  of 
the  French  Republic,  endeavored  to  set  up  consular  prize 
courts  within  the  territory  of  the  United  States.  After  a 
period  of  unavailing  remonstrances  addressed  to  him  person- 
ally, his  recall  was  demanded  from  his  government,  which 
complied  with  the  request,  and  caused  the  discontinuance  of 
the  obnoxious  proceedings.2 

1  Halleck,  International  Law,  Baker's  4th  ed.,  vol.  II,  pp.  431-433;  see 
also  Oddy  v.  Bovill  (Scott,  Cases  on  International  Law,  pp.  924-925). 

2  Moore,  International  Law  Digest,  vol.  IV,  pp.  486,  487  ;  Washington's 
Special  Message,  Dec.  6,  1793. 


478  THE  LAWS  OF   WAR 

Though  prize  courts  are  set  up  by  the  authority  of  a  bellig- 
erent government,  and  their  judges  are  appointed  and  paid 
by  it,  they  exist  for  the  purpose  of  administering  International 
Law.  In  America,  court  after  court  has  decided  that  Inter- 
national Law  is  part  and  parcel  of  the  law  of  the  land;  1  and 
it  is  held  that  every  member  of  the  family  of  nations  must 
submit  to  the  rules  of  the  society  of  which  it  forms  a  part. 
In  England  this  view  has  not  been  so  clearly  expressed  or  so 
widely  adopted.2  But  it  is  nevertheless  the  dominant  opin- 
ion, and  on  the  continent  of  Europe  it  would  meet  with  gen- 
eral acceptance,  though  it  would  hardly  be  stated  in  the  terms 
we  have  used.  All  nations  would,  however,  agree  in  holding 
that  their  prize  courts  were  bound  to  apply  the  rules  of  the 
law  of  nations  to  the  cases  that  came  before  them  for  settle- 
ment; and  in  the  vast  majority  of  cases  practice  on  this  point 
coincides  with  theory.  Yet  while  human  nature  remains 
what  it  is,  the  most  upright  and  able  of  judges  will  find  it 
impossible  to  divest  themselves  altogether  of  influences  due 
to  national  predilections  or  professional  training.  But  it  is 
possible  to  reduce  these  disturbing  elements  to  a  minimum, 
and  the  great  lights  of  international  jurisprudence  who  have 
adorned  the  judicial  bench  have  been  as  conspicuous  for  im- 
partiality as  for  learning.  There  is,  however,  one  case  where 
the  most  upright  of  judges  may  be  compelled  to  give  a  deci- 
sion he  knows  to  be  contrary  to  the  received  principles  and 
rules  of  the  international  code.  It  occurs  when  the  sovereign 
authority  of  his  own  state  issues  laws  and  regulations  com- 
manding conduct  that  International  Law  forbids,  or  forbid- 
ding conduct  that  International  Law  commands.  Such  were 
the  Berlin  and  Milan  Decrees  of  the  first  Napoleon  and  the 
retaliatory  British  Orders  in  Council.  The  courts  of  each 
country  were  bound  to  notice  and  administer  the  rules  laid 
down  by  its  duly  constituted  authorities.  If  they  had  re- 


1  Wharton,  International  Law  of  the  United  States,  §  8. 
8  Maine,  International  Law,  pp.  35-47. 


WITH   REGARD   TO    ENEMY   PROPERTY   AT    SEA         479 

fused,  they  would  have  been  in  a  state  of  contumacy,  and 
their  judges  would  have  been  quickly  dismissed.  But  the 
state  itself  is  responsible  to  other  states  for  any  injury  done 
to  them  or  their  subjects  by  proceedings  in  excess  of  its  law- 
ful powers  as  a  belligerent.  Its  prize  courts,  if  left  to  them- 
selves, as  they  ought  to  be  and  generally  are,  will,  as  a  rule 
to  which  there  are  some  notorious  exceptions,  administer  In- 
ternational Law ;  but  if  legislation  contrary  to  International 
Law  is  thrust  upon  them,  they  must  obey  it.  Other  states, 
however,  are  in  no  way  bound  to  submit;  and  if  neutrals 
think  themselves  aggrieved  because  of  decisions  arrived  at, 
either  spontaneously  t>r  in  consequence  of  legislative  acts, 
they  will  complain  to  the  belligerent  government.  The  effect 
of  a  decision  in  a  prize  court  is  to  settle  all  proprietary  rights 
in  the  vessel  or  goods  under  adjudication.  Controversy  be- 
tween the  captors  and  the  claimants  is  terminated  by  the 
final  judgment  on  appeal,  and  a  court  of  another  country  can- 
not afterwards  review  the  decision.  But  compensation  for 
damage  suffered  in  consequence  of  it  may  be  demanded  on 
behalf  of  neutral  sufferers  by  their  own  government.1  A 
state  is  responsible  for  the  decisions  of  its  prize  courts;  and 
if  they  have  acted  unjustly,  it  is  its  duty  to  give  satisfaction. 
Many  instances  where  this  has  been  done  may  be  found  in 
the  history  of  international  relations.  We  may  give,  as  an 
example,  the  award  of  the  Mixed  Commission,  appointed 
under  the  Treaty  of  179-1  between  Great  Britain  and  the 
United  States.  It  granted  an  indemnity  in  respect  of  several 
cases  in  which  the  British  prize  courts,  by  a  stretch  of  the 
extremest  rights  of  a  belligerent,  had  condemned  American 
vessels  laden  with  provisions  for  French  ports.2 

1  Moore,  International  Arbitrations,  vol.  Ill,  pp.  3184-3191. 

2  Treaties  of  the   United  States,  pp.  384,  385,  1322-1324  ;  Moore,  Inter- 
national Law  Digest,  vol.  II,  pp.  448,  449. 


480  THE   LAWS   OF   WAR 

§189 

The  jurisdiction  of  prize  courts  extends  over  all  captures 
made  in  war  by  their  country's  cruisers,  over  all  captures 
The  jurisdiction  of  made  on  land  by  a  naval  force  acting  alone  or 
prize  courts.  jn  conjunction  with  military  forces,  and  over 
seizures  made  afloat  by  the  joint  operations  of  land  and  sea 
forces.  It  also  includes  all  recaptures,  ransoms,  and  ransom 
bills,  and  all  incidental  questions  growing  out  of  the  circum- 
stances of  capture  such  as  freights  and  damages.  And  when 
it  was  customary  for  states  to  make  seizures  afloat  in  antici- 
pation of  war,  the  cases  that  arose  therefrom  were  taken 
before  their  prize  courts.  Speaking  generally,  we  may  lay 
down  the  proposition  that  the  courts  of  neutrals  have  no 
jurisdiction  over  the  captures  of  belligerents.  But  to  this 
rule  there  are  exceptions.  Jurisdiction  exists  and  can  be 
exercised  when  the  capture  is  made  within  the  territorial 
limits  of  the  neutral  state,  or  when  a  vessel,  originally 
equipped  for  war  within  neutral  jurisdiction,  or  afterwards 
made  more  efficient  by  an  augmentation  of  warlike  force 
therein,  takes  a  prize  at  sea  and  brings  it  within  the  waters 
of  the  injured  neutral  during  the  voyage  in  which  the  ille- 
gal equipment  or  augmentation  took  place.  In  both  cases 
neutral  sovereignty  is  violated  by  one  belligerent,  and  in 
consequence  the  neutral  is  exposed  to  claims  and  remon- 
strances from  the  other.  Jurisdiction  is  therefore  conferred 
upon  it  for  its  own  protection,  and  in  order  that  it  may 
insist  upon  the  restoration  of  the  property  unlawfully  taken.1 

§190 

There  is  little  in  common  between  an  ordinary  trial  and  a 
suit  in  a  court  of  prize.  In  the  former  an  issue  between 
two  parties  is  tried.  In  the  latter  the  state  holds  what, 
following  Dana,2  we  may  call  an  inquest  upon  certain 

1  See  case  of  the   Santissima  Trinidad  (Scott,  Cases  on  International 
Law,  pp.  701-705). 

2  Note  186  to  Wheaton's  International  Law. 


WITH  REGARD  TO  ENEMY  PROPERTY  AT  SEA    481 

property  to  discover  whether  it  has  been  lawfully  cap- 
tured or  not,  just  as  in  England  the  coroner  holds  an 
inquest  upon  a  body  to  discover  whether  the  The  procedure  of 
individual  concerned  came  by  his  death  lawfully  prize  courts- 
or  not.  Proceedings  commence  when  the  captured  vessel 
has  been  brought  into  port  within  the  jurisdiction  of  a  prize 
court  by  an  officer  of  the  vessel  that  made  the  seizure.  He 
puts  in  a  libel,  that  is  to  say,  he  petitions  the  court  to  hold  an 
inquiry,  and  with  his  libel  or  petition  he  forwards  the 
necessary  affidavits,  the  ship's  papers,  and  other  documents. 
Notice  is  then  given  that  any  person  having  an  interest  in 
the  property  may  appear  and  claim  it,  or  any  part  of  it. 
An  enemy  cannot  come  forward,  but  citizens,  allies,  or  neu- 
trals may.  As  the  next  step,  whether  claimants  appear  or 
not,  the  court  by  its  own  officers  examines  the  captured 
vessel,  its  papers  and  cargo,  and  administers  interrogatories 
to  the  persons  found  on  board.  The  captors  are  not  exam- 
ined at  this  stage,  nor  are  they  allowed  to  examine  the 
claimants  or  the  captured  persons.  When  the  court  has 
taken  the  evidence,  counsel  for  the  interested  parties  inspect 
it  and  base  their  arguments  upon  it.  The  burden  of  proof 
lies  on  the  claimants,  the  fact  that  the  vessel  was  brought 
in  under  the  control  of  the  captors  giving  rise  to  a  presump- 
tion in  their  favor.  If  the  evidence  above  described,  which 
is  technically  termed  evidence  in  preparatory,  is  deemed 
satisfactory  by  the  court,  it  gives  its  decision.  If  not,  it 
calls  for  what  is  termed  further  proof.  The  proceedings  then 
take  more  closely  the  form  of  a  trial  between  litigants.  The 
captors  and  the  claimants  produce  evidence,  their  counsel 
address  the  court,  and  finally  judgment  is  given.1 

1  Wheaton,  International  Law  (Dana's  ed.),  pp.  480-483,  note  ;  Holland, 
Manual  of  Naval  Prise  Law,  ch.  xxii. ;  Naval  Prise  Act  of  1864,  §§  16-33. 


482  THE  LAWS   OF   WAR 

§191 

In  our  account  of  prize  proceedings  we  have  assumed 
throughout  that  the  vessel  has  been  brought  into  port  and 
delivered  over  to  the  custody  of  the  court. 
S^tfSf  °aof  Such  a  delivery  is  in  accord  with  sound  princi- 
ple, for  the  proceedings  are  proceedings  in  rem, 
and  the  vessel  herself,  with  her  papers  and  crew,  is  the  best 
evidence  that  can  be  submitted  to  the  judge.  But  though 
this  course  is  regular,  it  is  not  essential.  Property  may  be 
adjudicated  upon  when  it  lies  in  the  port  of  an  ally  in  the 
war,  or  in  a  foreign  port  under  military  occupation  by  the 
captor's  country,  or  even  in  the  port  of  a  neutral.  It  is  open 
to  neutral  sovereigns  to  admit  the  prizes  of  belligerent 
cruisers  into  their  harbors.  There  has  been  a  tendency  in 
modern  times  to  exclude  them  ;  but  it  is  impossible  to  say 
that  a  breach  of  International  Law  is  committed  when  they 
are  allowed  to  enter,  provided  that  the  permission  be  granted 
impartially  to  both  sides.  And  if,  in  consequence  of  such 
a  grant,  prizes  lie  in  neutral  waters,  the  courts  of  the  lead- 
ing maritime  powers  will  adjudicate  upon  them.  Some- 
times a  captor  sells  his  prize  before  condemnation.  Grave 
necessity  will,  it  is  said,  excuse  such  an  act  ;  but  prize 
proceedings  for  adjudication  on  the  proceeds  of  the  sale 
ought  to  be  commenced  without  delay.  The  irregularity, 
however,  would  be  so  marked  that  we  may  hope  it  would 
not  now  be  countenanced.  Should  the  capture  turn  out  to 
be  illegal,  neutral  owners  would  have  good  ground  of  com- 
plaint when  the  proceeds  of  a  forced  sale  were  handed  over 
to  them  instead  of  the  ship  itself.1 

But  the  most  controversial  cases  arise  when  a  cruiser  de- 
stroys her  prizes  at  sea,  instead  of  taking  them  in  for  adjudi- 
cation. They  may  be  considered  under  two  heads,  —  enemy 
vessels  and  neutral  vessels.  With  regard  to  the  former, 
Hall  gives  an  excellent  summary  of  the  views  expressed  by 

1  Wheaton,  International  Law,  Dana's  ed.,  p.  486,  note. 


WITH  REGARD  TO  ENEMY  PROPERTY  AT  SEA    483 

various  authorities,  and  accompanies  it  by  many  acute  re- 
marks of  his  own.1  It  appears  to  be  generally  conceded  that 
when  the  captured  ship  and  cargo  is  enemy  property  there  is 
no  good  ground  for  complaining  of  her  destruction,  provided 
that  her  crippled  condition  rendered  navigation  dangerous, 
or  the  contiguity  of  an  enemy  or  any  other  cause  made  it 
unsafe  to  detach  a  prize  crew.  The  mere  fact  of  firm  pos- 
session transfers  proprietory  rights  to  the  captor  state,  and 
it  matters  little  to  an  enemy  subject  who  has  lost  them 
whether  the  captured  vessel  is  sent  to  the  bottom  of  the  sea  or 
made  over  by  public  authority  to  those  who  have  wrested 
her  from  him.  The  doctrine  that  necessity  justifies  destruc- 
tion has  been  laid  down  in  British  and  French  prize  courts. 
In  1812  the  United  States  went  further,  and  instructed  their 
naval  officers  at  the  outbreak  of  the  war  with  England  to 
destroy  all  the  enemy  merchantmen  they  took,  unless  they 
were  "  very  valuable  and  near  a  friendly  port."  2  The  excep- 
tion was  here  turned  into  the  rule  and  the  rule  into  the  ex- 
ception. It  was  perhaps  a  natural  recoil  from  this  extreme 
severity  which  caused  Woolsey  to  characterize  destruction  in 
any  case  as  "  barbarous,"  and  say  that  it  "  ought  to  disappear 
from  the  history  of  nations."3  But  at  present  there  are  no 
signs  of  such  a  disappearance.  The  Confederates  burnt  or 
sank  their  prizes  during  the  great  American  Civil  War,  on 
the  ground  that  the  strict  blockade  of  their  ports  by  Northern 
squadrons  rendered  it  impossible  to  take  vessels  in  for  adjudi- 
cation. In  1870  the  French  burned  two  German  vessels  in 
spite  of  the  fact  that  they  had  neutral  goods  on  board.  The 
Russians  in  1877  destroyed  some  of  their  prizes  in  the  Black 
Sea,  because  the  Turkish  blockade  of  their  ports  made  access 
to  them  difficult;  and  in  1904-1905  they  sank  several  enemy 

1  International  Law,  6th  ed.,  pp.  457-460,  and  notes. 

2  Quoted  by  Sir  A.  Cockburn  in  his  Reasons  for  dissenting  from  the  Award 
of  the  Tribunal  of  Arbitration.   See  British  Parliamentary  papers,  America, 
No.  2  (1873),  p.  93. 

8  International  Law,  §  148. 


484  THE  LAWS   OF  WAR 

merchantmen  in  the  sea  of  Japan  without  any  attempt  to 
take  them  to  the  prize  court  at  Vladivostock.  A  modern 
war-ship  can  spare  but  few  men  from  her  complement  for 
service  as  prize  crews.  It  is  impossible  to  make  the  duty  of 
sending  in  captured  enemy  merchantmen  for  adjudication 
absolute  and  universal ;  but  the  necessity  that  justifies  de- 
struction should  be  far  more  strictly  interpreted  than  has 
been  the  case  on  some  recent  occasions. 

A  broad  line  of  distinction  must  be  drawn  between  the  de- 
struction of  enemy  property  and  the  destruction  of  neutral 
property.  The  former  has  changed  owners  as  soon  as  the 
capture  is  effected;  but  the  latter  does  not  belong  to  the 
captors  till  a  properly  constituted  court  has  decided  that  their 
seizure  of  it  was  good  in  International  Law.  Its  owners 
have,  therefore,  a  right  to  insist  that  an  adjudication  upon 
their  claim  shall  precede  any  further  dealings  with  it.  If  this 
right  of  theirs  is  disregarded,  a  claim  for  satisfaction  and  in- 
demnity may  be  put  in  by  their  government.  It  is  far 
better  for  a  captor  to  release  a  neutral  ship  or  goods  as  to 
which  he  is  doubtful,  than  to  risk  personal  loss  and  inter- 
national complications  by  destroying  innocent  property. 
Great  Britain  took  this  view,  and  instructed  her  naval  officers 
accordingly.  The  Institute  of  International  Law  in  its 
Reglement  International  des  Prises  Maritime  permitted  the 
destruction  of  enemy  ships  in  certain  circumstances  and  under 
certain  conditions,  but  was  silent  as  to  neutral  vessels.1  It 
is  true  that  the  regulations  of  some  states  spoke  in  general 
terms  of  the  destruction  of  prizes  at  sea  without  making  it 
clear  that  enemy  vessels  only  were  intended.2  It  is  also 
true  that  in  a  few  cases  a  distinct  claim  was  made  of  a  right 
to  sink  or  burn  neutral  ships  which  could  not  be  sent  in  for 
adjudication.  The  Russo-Japanese  War  of  1904-1905  af- 
forded an  instance  of  this  last  pretension  on  the  part  of  both 

1  Tableau  General,  pp.  205-207. 

2  E.g.   Naval    War  Code  for  the  Use  of  the  United  States  Navy,  1900, 
Articles  14  and  50. 


WITH   REGARD   TO   ENEMY   PROPERTY   AT   SEA         485 

belligerents.1  In  pursuance  of  their  instructions  Russian 
war-ships  sank  several  neutral  merchantmen  instead  of  bring- 
ing them  into  port  for  trial  before  an  appropriate  tribunal. 
The  most  notorious  of  these  cases  was  that  of  the  Knight 
Commander?  a  British  vessel,  for  whose  destruction  the  Eng- 
lish Government  claimed  a  pecuniary  indemnity,  which  Russia 
refused  to  pay.  She  refused  also  to  submit  the  matter  to 
the  Hague  Tribunal  for  arbitration.  In  1907  the  general 
question  was  discussed  at  the  second  Hague  Conference,  of 
course  without  reference  to  particular  cases.  But  no  agree- 
ment was  reached.  Better  fortune,  however,  attended  the 
deliberations  of  the  Naval  Conference  of  1908-1909.  As  a 
result  of  its  labors  divergent  views  were  harmonized;  and 
the  fourth-  chapter  of  the  Declaration  of  London  dealt  with 
the  subject  in  a  series  of  rules  which  we  may  hope  will  soon 
become  accepted  law  throughout  the  civilized  world.3 

They  proceed  on  the  plan  of  adopting  as  a  fundamental 
principle  the  right  of  the  neutral  to  a  trial  before  a  prize 
court,  but  admitting  that  in  exceptional  circumstances  the  rule 
of  taking  the  vessel  in  for  adjudication  may  be  set  aside. 
Destruction  is  allowed  instead,  if  observance  of  the  rule 
would  involve  "  danger  to  the  safety  of  the  war-ship  or  to  the 
success  of  the  operations  in  which  she  is  engaged  at  the 
time."  The  objection  that  general  words,  such  as  these, 
might,  with  a  little  ingenuity,  be  made  to  cover  the  great 
majority  of  captures  was  met  by  securing  a  legal  trial  in  all 
cases.  Before  the  prize  is  burnt  or  sunk  the  captor  is  bound 
to  provide  for  the  safety  of  all  persons  on  board,  and  to 
secure  the  ship's  papers  and  all  other  documents  "  which  the 
parties  interested  consider  relevant  for  deciding  on  the  valid- 
ity of  the  capture."  He  must  send  them  in  for  adjudication 
in  lieu  of  the  ship  ;  and  the  first  question  to  be  decided  by 

1  Japanese  Regulations  governing  Captures  at  Sea,  1904,  Article 
Hussion  Regulations,  1895,  §  21,  and  Instructions,  1900,  §  40. 

2  Lawrence,  War  and  Neutrality  in  the  Far  East,  2d  ed.,  pp.  250-289. 
8  Higgins,  The  Hague  Peace  Conferences,  pp.  557-559. 


486  THE   LAWS   OF   WAR 

the  prize  court  is  whether  the  alleged  necessity  really  ex- 
isted. The  burden  of  proof  is  thrown  on  the  captor,  and  if 
he  fails,  not  only  must  he  pay  compensation  to  those  who 
have  an  interest  in  the  vessel  or  the  goods  that  she  carried, 
but  he  is  also  disabled  from  raising  the  question  whether 
the  capture  itself  was  valid.  The  proceedings  terminate 
with  the  decision  against  him  on  the  preliminary  point. 
But  if  the  court  is  satisfied  that  there  was  good  reason  for 
destruction,  it  will  go  on  to  try  the  further  question  whether 
the  seizure  was  effected  in  accordance  with  International 
Law.  Should  the  court  give  judgment  in  the  negative,  then 
"  the  captor  must  pay  compensation  to  the  parties  interested 
in  place  of  the  restitution  to  which  they  would  have  been 
entitled "  had  the  vessel  been  still  in  existence,  and  "  if 
neutral  goods  not  liable  to  condemnation  have  been  destroyed 
with  the  vessel,  the  owner  of  such  goods  is  entitled  to  com- 
pensation." It  is  abundantly  clear  that  no  belligerent  com- 
mander will  be  over  anxious  to  destroy  neutral  property  at 
sea,  when  the  penalties  for  so-doing  without  the  gravest 
necessity  have  been  made  as  severe  as  the  Declaration  of 
London  contemplates.1 

§192 

It  is  impossible  to  affirm  that  national  prize  courts  are  al- 
together satisfactory  tribunals.  Their  existence  is  testimony 
Tbe  international  to  a  general  desire  for  legal  adjustments  in  a 
prize  court.  sphere  of  human  activity  commonly  held  to 
belong  almost  entirely  to  force  ;  but  the  very  fact  that  they 
are  national  points  to  a  grave  defect.  By  means  of  them 
belligerent  states  become  practically  judges  in  their  own 
cause.  There  is  no  need  to  attribute  conscious  partiality  to 
the  able  men  who  occupy  the  seats  of  judgment  in  them,  but 
unconscious  bias  there  can  hardly  fail  to  be.  International 
Law  lias  not  at  present  given  us  a  code  of  naval  warfare  ac- 
cepted by  all  civilized  states,  though  it  has  taken  giant 

1  Declaration  of  London,  Articles  48-63. 


WITH   REGARD  TO   ENEMY   PROPERTY   AT   SEA         487 

strides  in  this  direction  during  recent  years.  Meanwhile 
there  are  differences  of  view  among  nations  on  several  im- 
portant matters,  and  the  jurists  of  a  state  do  not  escape  the 
influence  of  the  mental  and  moral  atmosphere  in  which  they 
have  been  born  and  bred.  Add  to  this  differences  in  legal 
systems  and  professional  customs,  and  also  in  the  organiza- 
tion of  public  justice,  and  it  is  easy  to  see  how  the  most 
judicially-minded  and  learned  of  men  may  come  to  divergent 
conclusions  on  the  same  set  of  facts. 

In  order  to  remedy  these  defects  both  Great  Britain  and 
Germany  laid  before  the  Hague  Conference  of  1907  plans  for 
the  constitution  of  an  International  Prize  Court.  After  a 
good  deal  of  discussion  they  were  amicably  combined,  mainly 
owing  to  the  untiring  labors  of  the  representatives  of  France 
and  the  United  States  ; l  and  the  result  stands  on  record  in 
the  twelfth  of  the  thirteen  Conventions  of  the  Conference. 
The  account  which  follows  is  taken  in  substance  from  the 
author's  International  Problems  and  Hague  Conferences? 
The  Court  is  to  consist  of  fifteen  judges  nominated  for  six 
years  by  the  powers  represented  at  the  Conference,  and 
eligible  for  reappointment.  Those  appointed  by  Germany, 
the  United  States,  Austria-Hungary,  France,  Great  Britain, 
Italy,  Japan,  and  Russia  are  always  to  sit ;  while  the 
nominees  of  the  other  contracting  parties  sit  by  rota,  their 
turns  being  distributed  over  a  period  of  six  years  according 
to  a  table  annexed  to  the  Convention.  There  are  to  be 
deputy-judges  as  well  as  judges  ;  and  if  one  of  the  latter  is 
absent  or  prevented  from  sitting  his  place  is  to  be  taken  by 
that  one  of  the  former  who  was  appointed  as  his  substitute. 
Nine  judges  form  a  quorum.  In  all  suits  arising  out  of  a 
war  the  judges  appointed  by  the  belligerent  states  may  take 
part,  on  request  being  made  by  their  governments.  In  that 
case  a  corresponding  number  of  judges  entitled  to  sit  accord- 
ing to  the  rota  have  to  withdraw,  and  lots  are  to  be  drawn 

1  Higgins,  The  Hague  Peace  Conferences,  pp.  432-435. 
» See  pp.  141-148. 


488  THE  LAWS  OF   WAR 

to  determine  which  of  them  shall  retire.  Further,  both  the 
captor  state  and  any  neutral  power  or  powers  interested  in 
the  proceedings  may  appoint  a  naval  officer  of  high  rank  to 
sit  with  the  court  as  assessor,  but  with  no  voice  in  the  deci- 
sion.1 Thus  at  any  sitting  of  the  court  there  may  be  as 
many  as  fifteen  judges  and  two  or  more  assessors,  or  as  few 
as  nine  judges  with  no  assessor.  In  practice,  no  doubt,  the 
numbers  will  vary  between  these  two  limits.  Article  10  of 
the  Convention  provides  that  the  judges  are  to  be  "  jurists  of 
known  proficiency  in  questions  of  international  maritime 
law,  and  of  the  highest  moral  reputation ;"  and  by  Article 
13,  before  they  take  their  seats  they  are  to  swear  or  make 
a  solemn  promise  to  discharge  their  duties  impartially  and 
conscientiously.  Their  position  is  one  of  great  honor  and 
dignity.  They  are  to  enjoy  diplomatic  privileges  in  the  per- 
formance of  their  duties  and  when  outside  their  own  country. 
They  are  to  sit  at  The  Hague,  and  all  the  permanent  official 
machinery  of  the  Conferences  —  the  Administrative  Council, 
the  International  Bureau,  the  Secretary  General  and  his 
staff  —  is  to  be  at  their  disposal  for  the  due  performance  and 
proper  recording  of  their  work.  The  governments  of  all  the 
signatory  powers  are  to  assist  them  in  such  matters  as  serving 
notices,  summoning  witnesses,  and  securing  the  attendance 
of  experts.  If  they  are  divided  in  opinion  as  to  their  decision, 
the  majority  prevails.  They  will  receive  adequate  remuner- 
ation, but  it  is  expressly  provided  that  it  is  not  to  come  from 
"  their  own  government  or  that  of  any  other  power."  Pay- 
ment is  to  be  made  through  the  International  Bureau  at  The 
Hague,  which  will  obtain  the  funds  from  the  contracting 
parties  in  proportion  to  their  share  in  the  composition  of  the 
court.2 

It  will  be  noticed  that  the  eight  Great  Powers  have  the 

preponderant  influence  to  which  their  position  entitles  them, 

and  an  examination  of  the  rota  shows  that  the  share  of  each 

of  the  other  states  has  been  carefully  assigned  in  proportion 

1  See  Articles  14-18.  a  See  Articles  20,  47. 


WITH   REGARD   TO   ENEMY   PROPERTY   AT   SEA         489 

to  its  present  strength  and  historical  importance.  Yet  due 
weight  has  been  given  to  the  fact  that  changes  are  constantly 
taking  place  in  these  particulars.  All  history  shows  that  na- 
tions wax  and  wane;  and  observation  of  what  is  going  on  in  the 
world  around  us  brings  home  the  conviction  that  the  process 
instead  of  tending  towards  a  final  and  permanent  adjustment 
is  continuing  with  accelerated  rapidity.  The  Convention 
takes  note  of  this,  and  provides  in  its  last  Article  for  a  periodi- 
cal revision  of  the  constitution  of  the  court  on  the  demand  of 
any  power  which  deems  its  position  therein  inadequate. 

We  have  described  the  International  Prize  Court.  Let  us 
now  consider  its  functions  and  jurisdiction.  The  Convention 
contemplates  that  in  the  future,  as  in  the  past,  questions  of 
maritime  capture  should  go  in  the  first  instance  before  the 
courts  of  the  captor  state.  If  by  its  law  there  is  an  appeal 
from  the  court  of  first  instance  to  a  higher  court,  such  appeal 
may  be  made ;  but  the  case  cannot  be  heard  more  than  twice 
in  the  national  courts.  Any  further  decision  that  is  wanted 
must  be  sought  from  the  International  Court ;  and  "  if  the 
national  courts  fail  to  give  final  judgment  within  two  years 
from  the  date  of  capture,  the  case  may  be  carried  direct  to  the 
International  Court."  But  it  follows  from  what  has  been  said 
before  with  regard  to  the  conclusiveness  of  force  between 
opposing  belligerents  that  as  a  general  rule  there  can  be  no 
appeal  from  a  national  court  to  the  International  Prize 
Court  when  enemy  property  is  concerned.  The  only  excep- 
tions occur  where  neutral  as  well  as  belligerent  interests  are 
involved,  or  where  the  question  at  issue  depends  on  the 
interpretation  of  treaties  or  unilateral  documents  dealing  with 
other  than  purely  domestic  affairs.  On  the  other  hand,  appeals 
are  allowed  in  all  cases  when  the  judgment  of  the  national 
court  affects  the  property  of  a  neutral  state  or  a  neutral  individ- 
ual. The  same  distinction  appears  again  in  the  regulations 
with  regard  to  the  parties  by  whom  appeals  may  be  brought. 
The  belligerent  powers  are  ruled  out  altogether,  and  bellig- 
erent subjects  also,  unless  the  judgment  affects  their  property 


490  THE  LAWS   OF   WAR 

seized  on  board  a  neutral  ship,  or  taken  in  alleged  violation 
of  a  Convention  between  the  belligerent  states  or  of  an  en- 
actment issued  by  the  captor  state.  Neutral  powers,  however, 
may  appeal  whenever  they  deem  the  judgment  injurious  to 
their  property  and  that  of  their  subjects,  or  if  the  capture  of 
an  enemy  vessel  is  alleged  to  have  taken  place  in  their  territorial 
waters.  Neutral  individuals,  too,  have  the  right  to  appeal  in 
protection  of  their  property  if  their  governments  do  not  move  ; 
and  the  International  Court  will  hear  them  unless  they  are  for- 
bidden by  their  own  state  to  carry  on  the  case.  All  these  care- 
fully drawn  regulations  proceed  on  the  principle  that  neutrals 
are  entitled  to  legal  decisions  in  cases  between  themselves  and 
belligerents.  In  them  superior  force  has  no  effect  on  title, 
though  it  may  settle  the  question  of  immediate  possession. 
The  important  thing  is  to  secure  an  impartial  judgment  on 
the  points  of  law  involved;  and  this  the  institution  of  an 
International  Prize  Court  is  intended  to  do. 1 

We  now  come  to  the  crucial  question  of  the  law  which  the 
International  Prize  Court  is  to  administer.  No  one  doubts 
that  it  must  decide  in  the  first  place  according  to  the  terms 
of  any  treaty  applicable  to  the  case  and  in  force  between  the 
captor  state  and  the  state  which  is  the  other  party  in  the 
proceedings,  or  whose  subject  is  in  this  position.  Nor  would 
it  be  seriously  disputed  that  in  the  absence  of  such  a  treaty 
the  accepted  rules  of  International  Law  must  be  applied 
as  far  as  they  bear  on  the  matter  in  dispute.  But  what  if  no 
generally  recognized  rules  exist,  either  because  two  or  more 
schools  of  thought  are  in  dispute  over  the  matter,  or  because 
the  points  raised  are  so  new  that  neither  custom  nor  express 
agreement  have  had  time  to  deal  with  them  ?  Both  contin- 
gencies are  probable.  Indeed,  we  may  assume  with  confidence 
that  a  large  proportion  of  the  cases  that  reach  the  Interna- 
tional Court  of  Appeal  will  come  under  one  head  or  the 
other.  How  are  they  to  be  decided?  In  answer  to  this 
question  the  Convention  declares  that  "  the  court  shall  give 
1  See  Articles  1-6. 


WITH  EEGAED  TO  ENEMY  PROPERTY  AT  SEA    491 

judgment  in  accordance  with  the  general  principles  of  justice 
and  equity."  l  This  direction  has  been  a  stumbling-block  to 
many.  Its  very  boldness  overthrows  the  balance  of  the 
timid;  and  those  who  have  been  content  that  we  should 
lumber  along  as  best  we  could  in  the  old  ruts  stand  aghast 
at  the  audacity  which  would  press  forward  in  a  new  direction. 
The  head  and  front  of  the  offence  of  the  clause  we  have  just 
quoted  is  that  it  does  undoubtedly  give  the  court  the  power 
"  to  make  the  law  "  in  the  last  resort.  This  was  plainly 
stated  by  M.  Louis  Renault,  the  great  French  jurist,  in  the 
wise  and  statesmanlike  report  which  accompanied  the  draft 
of  the  Convention.  He  justified  the  innovation  on  the 
ground  that  it  would  ameliorate  the  practice  of  International 
Law,  and  maintained  that  the  eminent  magistrates  who  would 
compose  the  court  might  be  trusted  to  rise  to  the  height 
of  their  mission,  and  supply  the  deficiencies  of  existing  rules, 
till  they  had  been  codified  by  the  action  of  governments. 
We  may  add  that  even  then  their  extension  by  analogy 
would  be  required  to  meet  the  needs  of  a  living  and  growing 
society,  which  on  the  morrow  of  the  adoption  of  a  code 
would  proceed  to  throw  up  cases  not  provided  for  therein. 
The  court  contemplated  by  the  brilliant  plenipotentiary  of 
France  would  therefore  be  necessary  after,  as  well  as  before, 
the  codification  of  the  law  of  nations.  If  it  comes  into 
existence,  we  may  regard  it  as  a  permanent  institution. 

The  Convention  is  no  exception  to  the  rule  which  requires 
signature  and  ratification  before  the  powers  which  negotiated 
it  are  held  bound  by  it.  For  these  observances  a  period  end- 
ing with  June  30,  1908,  is  assigned  in  the  case  of  the  other 
Conventions  negotiated  at  The  Hague  in  1907 ;  but  for  that 
which  established  an  International  Prize  Court  a  year  longer 
was  allowed,  and  additional  time  has  been  granted  since. 
Moreover,  the  Convention  itself  contemplates  the  possibility 
of  a  limited  number  of  signatures,  and  provides  that  the 
court  shall  not  come  into  existence  unless  there  are  enough 

1  See  Article  7. 


492  THE  LAWS  OF  WAR 

signatory  powers  to  furnish  nine  judges  and  nine  deputy 
judges.  It  also  makes  arrangements  for  the  revision  of 
the  list  of  judges  entitled  to  sit,  if  the  consent  of  any  of  the 
eight  Great  Powers  or  of  any  of  the  states  mentioned  in  the 
rota  should  be  lacking.  In  case  the  total  number  of  judges 
should  be  less  than  eleven,  seven  are  to  form  a  quorum.1  But 
it  is  clear  that  a  court  established  by  little  more  than  half 
the  powers  would  fail  altogether  to  attain  the  great  object 
of  harmonizing  and  completing  the  Maritime  International 
Law  of  the  civilized  world,  while  its  decisions  would  be  sadly 
lacking  in  moral  authority  if  the  minority  included  some  of 
the  most  powerful  of  maritime  states. 

This  brings  us  to  a  difficulty  which  seemed  at  first  as  if  it 
might  prevent  the  United  States  from  helping  to  constitute 
the  court  to  the  initiation  of  which  they  contributed  so 
powerfully  at  The  Hague.  The  question  was  raised  whether 
their  Constitution  did  not  by  inference  prohibit  any  appeal 
from  the  decisions  of  their  Supreme  Court  in  prize  cases. 
It  was,  therefore,  suggested  that  when  there  was  a  complaint 
against  any  of  its  prize  judgments,  the  complaining  party 
should  be  allowed  to  make  application  to  the  International 
Prize  Court  for  compensation  on  the  ground  of  illegal  cap- 
ture. This  would  not  technically  amount  to  an  appeal,  but 
would  rank  as  a  suit  de  novo.  If  the  International  Court 
pronounced  in  favor  of  the  complainant,  the  indemnity  it 
awarded  would  be  paid  by  the  Federal  Government,  and 
thus  justice  would  be  done,  though  not  in  the  form  pre- 
scribed at  The  Hague.2  In  order  to  carry  out  this  plan  it 
became  necessary  to  negotiate  a  protocol  allowing  the  sug- 
gested procedure  in  the  case  of  those  states  whose  consti- 
tutions rendered  impossible  the  methods  prescribed  in  the 
Prize  Court  Convention  of  1907.  This  was  done  in  Septem- 

1  See  Article  56. 

2  Higgins,   The  Hague  Peace  Conferences,  pp.  443,  444 ;  British  Parlia- 
mentary Papers,  Miscellaneous,  No.  4  (1909),  pp.  103, 104,  and  Miscellaneous, 
No.  5  (1909),  p.  253. 


WITH  REGARD  TO  ENEMY  PROPERTY  AT  SEA    493 

ber,  1910,  and  ratified  by  the  American  Senate  in  February, 
1911.  Thirty -three  powers  have  signed  the  Convention;  but 
ten  of  them  entered  reservations  against  Article  15,  which 
settles  the  composition  of  the  court.  None  of  these  are  of 
the  first  rank,  and  all  were  swayed  by  the  argument  that  the 
privileged  position  accorded  to  the  eight  Great  Powers  con- 
stituted an  infringement  of  the  principle  of  the  equality  of 
sovereign  states.  This  principle  was  stated  and  restated 
during  the  debates  in  the  crudest  manner,  and  without  the 
slightest  regard  to  practical  considerations.  Strength  and 
influence  were  ignored,  and  equality  before  the  law  construed 
as  involving  equality  in  place  and  authority.  But  among 
the  twenty-three  powers  who  have  accepted  the  Convention 
in  its  entirety  are  included  the  chief  maritime  nations  of 
the  world,  and  if  they  ratify  the  consent  they  have  already 
given,  the  International  Prize  Court  will  soon  become  a  reality. 
It  may  be  hoped  that  the  success  of  the  Naval  Conference 
of  1908-1909  will  help  materially  to  procure  for  the  proposed 
court  the  active  support  of  all  states  whose  interests  at  sea 
are  considerable.  At  first  some  were  kept  back  by  the  fact 
that  much  of  the  law  to  be  administered  by  the  international 
judges  was  uncertain  and  disputed.  But  in  the  Declaration 
of  London  of  1909  are  to  be  found  rules  for  the  settlement  of 
most  of  the  controverted  points.  The  difficult  questions 
of  blockade  and  contraband  have  at  last  received  a  solution 
which  is  satisfactory  to  all  the  Great  Powers.  The  hardly  less 
troublesome  controversies  connected  with  unneutral  service 
and  the  destruction  of  neutral  prizes  are  amicably  ended. 
The  old  sore  of  convoy  is  thoroughly  healed.  Comparatively 
few  matters  remain  for  settlement,  and  though  some  of  them 
are  important,  none  are  vital.  They  may  well  be  left  to  the 
International  Tribunal.  It  must  never  be  forgotten  that  the 
Court  will  be  the  most  important  and  dignified  in  the  world, 
and  its  judges  the  picked  jurists  of  the  family  of  nations. 
Their  character,  their  learning,  and  the  exalted  nature  of  their 
functions  will  combine  to  impress  on  them  the  necessity  of 


494  THE  LAWS   OF   WAR 

rising  to  the  utmost  height  of  their  powers,  and  to  give  their 
judgments  a  weight  and  reputation  such  as  no  other  judicial 
utterances  will  be  able  to  secure.1 

§193 

From  time  immemorial  the  practice  of  capturing  private 
property  at  sea  has  been  carried  on  by  belligerents.  But 
Histo  of  the  within  the  last  hundred  and  fifty  years  a  strong 
proposal  to  exempt  dislike  to  it  has  sprung  up  in  America  and  on 

private  property  >  j-  *  „ 

from  capture  at  sea  the  continent  of  Europe.     The  United  States 

in  time  of  war.  -i  «  iji  •%•  f  •  •  <•  ii 

has  favored  the  policy  of  exemption  from  the 
beginning  of  its  national  career.  It  was  embodied  in  Frank- 
lin's treaty  with  Prussia  in  1785,2  but  found  no  place  in  sub- 
sequent treaties  with  that  power.  In  1823  Mr.  John  Quincy 
Adams,  as  Secretary  of  State,  proposed  to  the  governments 
of  England,  France,  and  Russia  that  they  should  enter  into 
a  convention  for  the  purpose  of  exempting  private  property 
at  sea  from  the  depredations  of  war,  an  exemption  which  he 
seems  curiously  enough  to  have  regarded  as  equivalent  to 
"the  total  abolition  of  private  maritime  war."3  England 
and  France  declined  to  entertain  the  proposal,  and,  as  Russia 
made  her  acceptance  conditional  on  that  of  the  other  naval 
powers,  nothing  came  of  the  effort  to  engraft  it  on  the  Inter- 
national Code.  In  1856  another  attempt  was  made  by  the 
American  Government  to  obtain  a  general  recognition  of 
the  principle  of  exemption.  The  powers  assembled  in  Con- 
gress at  Paris  had  drawn  up  and  signed  a  Declaration  on 
Maritime  Law,  the  first  article  of  which  decreed  the  abolition 
of  privateering.  When  this  important  document  was  sub- 

1  For  the  test  of  the  Hague  Convention  relative  to  the  Establishment  of  an 
International  Prize  Court,  see  Whittuck,  International  Documents,  pp.  190- 
206;   Scott,  The  Hague  Peace  Conferences,  vol.  II,  pp.  473-507;   Supple- 
ment to  the  American  Journal  of  International  Law,  vol.  II,  Nos.  1  and  2, 
pp.  174-202.    For  the  text  with  an  illuminating  comment,  see  Higgins,  The 
Hague  Peace  Conferences,  pp.  407-444. 

2  Treaties  of  the  United  States,  pp.  905-906. 

8  Wharton,  International  Law  of  the  United  States,  vol.  Ill,  p.  261. 


WITH  REGARD  TO  ENEMY  PROPERTY  AT  SEA    495 

mitted  to  the  United  States  for  signature,  President  Pierce 
and  his  Cabinet  declined  to  give  up  for  their  country  the  right 
to  employ  privateers,  unless  all  private  property  at  sea,  except 
contraband  of  war,  was  freed  from  liability  to  capture.1 
France,  Russia,  and  Prussia,  were  willing  to  consent  to  this 
enlargement  of  the  scope  of  the  original  Declaration;  but  the 
project  fell  through  mainly  owing  to  the  opposition  of  Great 
Britain  and  a  change  of  President  in  the  United  States.2  In 
the  correspondence  of  1861  on  the  subject  of  the  Declaration, 
Mr.  Seward,  then  Secretary  of  State,  expressed  a  wish  that  it 
might  be  accepted;  and  when,  in  1870,  the  Prussian  Govern- 
ment notified  that  it  would  not  capture  private  property  at 
sea  during  the  war  which  had  just  broken  out  with  France, 
Mr.  Fish,  in  acknowledging  the  receipt  of  the  declaration  in 
favor  of  exemption,  gave  utterance  to  the  hope  that  "the 
government  and  people  of  the  United  States  may  soon  be 
gratified  by  seeing  it  universally  recognized  as  another  re- 
straining and  harmonizing  influence  imposed  by  modern  civi- 
lization upon  the  art  of  war."  3  In  the  following  year  he  was 
able  to  do  something  towards  the  realization  of  his  own  wish 
by  negotiating  a  treaty  with  Italy,  which  provided  that  in  the 
event  of  war  between  the  two  powers,  the  private  property  of 
the  citizens  and  subjects  of  each  should  be  exempt  from  seizure 
at  sea,  unless  it  were  contraband  of  war.  *  The  American 
delegates  to  the  Hague  Conference  of  1899  were  instructed 
to  bring  the  matter  forward.  As  it  was  not  included  in  the 
official  programme,  they  had  some  difficulty  in  doing  this; 
but  at  last  they  so  far  succeeded  that  the  Conference  in  an 
official  "  wish "  referred  the  proposal  to  grant  immunity  to 
private  property  in  naval  warfare  to  a  subsequent  Conference 
for  consideration.6  This  was  given  in  1907,  when  the  second 

1  Higgins,  The  Hague  Peace  Conferences,  pp.  1-3. 

2  Moore,  International  Law  Digest,  vol.  VII,  pp.  663-581. 

8  Wharton,  International  Law  of  the  United  States,  vol.  Ill,  p.  296. 
*  Treaties  of  the  United  States,  p.  584. 

6  Holls,  The  Peace  Conference  at  the  Hague,  pp.  306-321 ;  Moore,  Inter' 
national  Law  Digest,  vol.  VII,  pp.  470-472. 


496  THE  LAWS   OF   WAR 

Hague  Conference  debated  the  subject  with  great  earnestness 
and  ability.  In  the  end  the  American  proposition  failed  to 
obtain  the  well-nigh  general  adhesion  necessary  for  its  adop- 
tion, though  it  was  supported  by  the  majority  of  the  votes 
actually  cast.  The  only  tangible  result  of  the  discussion  was 
the  embodiment  in  the  Final  Act  of  the  Conference  of  a 
"  wish  "  to  the  effect  that "  the  powers  may  apply,  as  far  as  pos- 
sible, to  war  by  sea  the  principles  of  the  Convention  relative  to 
the  laws  and  customs  of  war  on  land."  As  private  property 
in  land  warfare  is  subject  to  the  right  of  requisition  and  other 
interferences,  this  "  wish"  may  be  regarded  as  an  expression 
of  a  purely  platonic  affection  for  the  American  project.  x 

The  facts  just  narrated  bring  two  points  into  prominence. 
It  is  quite  clear  that  the  United  States  is  in  favor  of  exemp- 
tion as  a  fixed  and  settled  policy,  but  does  not  regard  it  as 
part  of  the  public  law  of  the  civilized  world.  It  is  some- 
thing to  be  desired  and  worked  for,  not  something  that  has 
been  already  obtained.  In  Europe  the  conflict  of  1866  be- 
tween Prussia  and  Italy  on  the  one  side,  and  Austria  on  the 
other,  was  fought  from  beginning  to  end  without  resort  to  the 
capture  of  private  property  at  sea.  And  when  a  new  view 
of  international  duty  has  stood  the  test  of  a  great  war,  it  can 
no  longer  be  regarded  as  purely  academic  in  its  nature.  But 
the  influence  of  the  particular  view  now  under  consideration 
has  not  been  confined  to  one  war  in  which  naval  operations 
played  a  subordinate  part.  It  made  itself  felt  in  Article 
211  of  the  Italian  Maritime  Code,  which  forbids  Italian  ships 
of  war  to  molest  the  merchant  vessels  of  any  enemy  who  re- 
frains from  capturing  the  private  property  of  Italian  subjects  ; 
and  its  strength  was  further  manifested  in  the  Commercial 
Treaty  of  1871  between  the  United  States  and  Italy,  whereby, 
as  we  have  already  seen,  the  two  countries  agreed  to  grant 

1  Scott,  The  Hague  Peace  Conferences,  vol.  I,  pp.  698-704 ;  Higgins, 
The  Hague  Peace  Conferences,  pp.  69,  78-80 ;  Report  of  M.  Fromageot  given  in 
Deuxieme  Conference  International  de  la  Paix,  Acts  et  Documents,  vol.  I,  pp. 
245-249 ;  Scott,  American  Addresses  at  the  second  Hague  Peace  Conference, 
pp.  2-24. 


"WITH    REGARD   TO   ENEMY   PROPERTY    AT    SEA         497 

exemption,  on  the  footing  of  reciprocal  concession.  There 
seemed  at  one  time  every  prospect  of  freedom  from  molesta- 
tion for  peaceful  commerce  in  the  great  war  of  1870-1871 
between  France  and  Germany.  Prince  Bismark  declared  at 
its  commencement  that  private  property  on  the  high  seas 
would  be  exempt  from  seizure  by  the  ships  of  the  King  of 
Prussia  without  regard  to  reciprocitj7-.  But  in  January,  1871, 
the  concession  was  withdrawn,  because  France  acted  upon 
her  full  rights  as  a  belligerent,  and  made  prizes  of  German 
merchantmen.1  Consequently  this  last  instance  may  be 
quoted  for  or  against  the  contention  that  the  new  ideas  are 
gaining  ground.  It  cannot,  however,  be  denied  that  they 
have  in  some  cases  influenced  practice  ;  and  when  once  the 
besieging  forces  of  theory  have  gained  a  footing  within  the 
citadel  of  action,  they  have  a  habit  of  carrying  it  entirely 
after  a  more  or  less  stubborn  conflict  with  its  defenders. 

If  we  turn  from  the  deeds  of  rulers  and  commanders  to  the 
opinions  of  jurists,  we  shall  find  a  great  mass  of  modern 
authority  in  favor  of  the  proposed  change.  During  the 
eighteenth  century  the  voices  raised  in  its  favor  were  few 
and  far  between.  Franklin  in  America,  Mably  and  Galiani 
in  Europe,  were  its  chief  advocates.  But  now  its  supporters 
are  numerous  and  active.  Bluntschli,  De  Martens,  Bernard, 
De  Laveleye,  Calvo,  Hall,  Maine,  and  many  others  still  living, 
have  championed  the  new  view.  The  Institute  of  Inter- 
national Law  has  twice  pronounced  in  its  favor,2  and  though 
there  are  signs  of  a  reaction  in  the  works  of  the  younger 
generation  of  modern  publicists,3  the  majority  of  jurists  are 
probably  on  its  side.  Why  then,  it  may  be  asked,  has  it  not 
been  adopted  by  the  maritime  powers,  and  made  into  a  rule 
of  International  Law,  with  the  necessary  exceptions  and 
qualifications,  which  may  be  found  duly  set  forth  in  the 
Maritime  Code  adopted  after  long  deliberation  by  the  Insti- 

1  Moore,  International  Law  Digest,  vol.  VII,  p.  468. 

2  Tableau  General  de  ISInstitut  de  Droit  International,  pp.  191,  196. 
8  E.g.  Latifi,  Effects  of  War  on  Property,  pp.  117-143. 


498  THE  LAWS   OF   WAR 

tute  of  International  Law  at  its  session  at  Heidelberg  in 
1887.1  The  answer  is  that  the  immunity  of  private  property 
from  capture  at  sea  will  not  be  decreed  till  the  rulers  of  the 
great  majority  of  states  are  convinced  that  it  will  not  deprive 
them  of  any  important  advantage  in  warfare  which  they 
possess  under  present  conditions.  Some  are  already  in  this 
balanced  state  of  mind.  Others  hold  that  the  change  would 
be  positively  advantageous,  while  a  powerful  minority  look 
on  it  as  hurtful.  Opinion  is  fluid  and  uncertain,  as  the 
proceedings  at  the  Hague  Conference  of  1907  conclusively 
showed.  No  alteration  in  existing  rules  was  made  ;  but  in 
the  discussion  on  the  American  proposal  Brazil  suggested  a 
right  to  requisition  in  case  of  necessity,  Belgium  the  seques- 
tration of  enemy  ships  and  cargoes  during  the  war,  Holland 
the  exemption  from  capture  of  vessels  as  to  which  the  enemy 
certified  that  they  would  not  be  put  to  warlike  uses,  and 
France  the  abolition  of  prize  money  and  the  grant  of  com- 
pensation to  private  individuals  from  the  state  for  losses  sus- 
tained by  captures.2  Even  Great  Britain,  the  chief  opponent 
of  the  change,  held  out  hopes  of  assent,  if  the  desired  im- 
munity were  coupled  with  a  general  diminution  of  arma- 
ments.3 All  this  betrays  an  uneasy  consciousness  that  the 
present  law  requires  alteration,  coupled  with  inability  to 
discover  the  right  line  of  amendment. 

§194 

Those  who  are  in  favor  of  the  proposed  exemption  rely 
largely  on  humanitarian  considerations.  They  point  to  the 
Arguments  for  security  from  indiscriminate  pillage  now  en- 
propred  elemp-  ^^  by  Private  Property  in  war  on  land,  and 
tion-  denounce  as  barbarous  its  continued  liability  to 

capture  at  sea.4     They  also  argue  that,  as  enemy  goods  laden 

1  Tableau  General,  pp.  196, 199,  200. 

2  Higgins,  The  Hague  Peace  Conferences,  pp.  80,  81. 

8  British  Parliamentary  Papers,  Miscellaneous,  No.  1  (1908),  pp.  16,  16. 
*  Macdonell,  Some  Plain  Reasons  for- Immunity  from  Capture  of  Private 
Property  at  Sea,  pp.  4-9. 


WITH  REGARD  TO  ENEMY  PROPERTY  AT  SEA    499 

on  neutral  merchantmen  are  now  protected  from  capture  by 
the  Declaration  of  Paris  of  1856,  unless  they  are  contraband 
in  their  nature,  the  further  step  of  allowing  them,  with  the 
same  exception,  to  go  free,  along  with  the  vehicle  that  car- 
ries them,  even  when  it  flies  the  enemy's  flag,  would  not  de- 
prive belligerents  of  a  right  of  any  great  value,  while  the 
security  it  afforded  to  peaceful  trade  would  be  a  marked  gain 
to  humanity.  The  defenders  of  the  present  practice  point 
out  that  the  analogy  of  land  warfare  is  deceptive.  When 
an  invader  occupies  a  district,  he  can  levy  contributions  and 
requisitions  on  private  property,  and  compel  the  inhabitants 
to  perform  certain  services.  Thus  he  not  only  deprives  the 
enemy  state  of  its  resources,  but  utilizes  them  for  his  own 
purposes.  But  at  sea  a  vessel  of  the  hostile  country  must 
either  be  captured  or  allowed  to  go  free.  It  is  impossible  to 
seize  a  fraction  of  her,  and  in  most  cases  it  would  be  impos- 
sible to  transfer  in  a  reasonable  time  any  considerable  por- 
tion of  her  cargo.  Yet  if  she  is  set  at  liberty,  both  she  and 
the  goods  she  carries  swell  the  resources  of  the  enemy,  and 
help  him  to  continue  his  war.  Moreover  the  capture  of  a 
merchantman  is  as  orderly  a  proceeding  as  the  occupation  of 
a  village.  There  is  no  more  pillage  in  the  first  case  than  there 
is  in  the  second.  If  there  be  any  moral  difference  it  is  in 
favor  of  the  naval  operation  ;  for  women  and  children  are 
rarely  to  be  found  on  board  a  trading  vessel,  whereas  they 
are  always  present  in  the  smallest  cluster  of  land  habitations. 
Indeed,  it  may  be  contended  with  justice  that  there  is  no 
more  humane  method  of  reducing  an  enemy's  means  of  carry- 
ing on  war  than  the  destruction  of  his  sea-borne  commerce. 
It  involves  little  bloodshed.  Now  that  the  detention  of  the 
crews  of  captured  merchantmen  as  prisoners  of  war  has  been 
practically  abolished,  it  no  longer  means  deprivation  of  lib- 
erty to  peaceful  mariners.  What  is  doubtful  is  not  the  hu- 
manity of  the  practice,  but  its  effectiveness,  as  we  shall  soon 
show.  The  argument  that  the  suggested  change  is  but  a 
comparatively  trivial  development  of  the  concession  made 


500  THE  LAWS   OF   WAR 

when  the  maxim  free  ships,  free  goods  received  general  assent 
is  met  by  traversing  the  alleged  fact.  The  contrary  is  de- 
clared to  be  more  nearly  true.  It  is  asserted  that  to  destroy 
an  enemy's  commercial  marine  is  one  of  the  most  effective 
methods,  and  in  the  case  of  a  power  whose  chief  weapon  is 
his  fleet,  the  only  effective  method,  of  weakening  his  re- 
sources and  inducing  him  to  sue  for  terms. 

The  doctrine,  borrowed  from  Rousseau,  that  war  is  a  rela- 
tion of  state  to  state,  and  has  no  concern  with  individuals 
except  as  agents  of  the  state,  has  been  so  often  quoted  with 
approval  that  it  is  regarded  in  many  quarters  as  axiomatic, 
The  capture  of  private  property  at  sea  is  clearly  inconsistent 
with  it,  and  this  alone  is  deemed  sufficient  ground  for  an  al- 
teration of  practice.  But  in  truth  the  supposed  axiom  is  a 
transparent  fallacy.  Belligerents  constantly  exercise  severi- 
ties against  private  individuals  belonging  to  the  enemy  state, 
though  promiscuous  robbery  and  slaughter  is  no  longer  per- 
mitted. A  simple  enumeration  of  the  rights  possessed  by  an 
invader  over  the  non-combatant  inhabitants  of  the  territory 
under  his  military  occupation  is  sufficient  to  make  good  this 
assertion.  Land  warfare,  therefore,  which  is  constantly  held 
up  as  an  example  by  the  advocates  of  change,  takes  no  ac- 
count of  the  boasted  doctrine.  Why  then  should  sea  warfare 
accept  it  on  pain  of  being  denounced  as  inferior  in  humanity  ? 

In  fact  the  controversy  is  unreal  and  hopelessly  out  of 
date  in  so  far  as  it  depends  on  purely  humanitarian  consider- 
ations. Armed  conflicts  cannot  be  waged  without  much 
suffering ;  but  on  the  whole  maritime  operations  involve  less 
of  human  misery  than  those  which  are  conducted  on  land. 
The  belief  that  war  is  an  evil  in  itself,  and  therefore  to  be 
restricted  if  it  cannot  be  destroyed,  is  the  true  moral  justi- 
fication of  the  attempt  to  protect  sea-borne  commerce  from  its 
attacks.  The  idea  of  any  special  inhumanity  in  them  may 
be  dismissed  as  an  illusion  ;  bu-t  nevertheless  to  end  them 
by  international  agreement  would  be  a  distinct  gain,  unless 
wars  were  so  lengthened  thereby  that  the  sum  total  of  loss 


WITH   REGARD   TO   ENEMY  PROPERTY   AT  SEA         501 

and  suffering  was  increased  rather  than  diminished.  Here 
lies  the  real  moral  problem;  and  we  see  at  once  that  it  is 
closely  connected  with  a  material  problem.  If  it  be  true 
that  the  capture  of  private  property  at  sea  shortens  wars 
considerably,  then  it  will  be  wise  and  right  to  retain  the 
practice.  If,  on  the  other  hand,  no  such  effect  is  produced, 
but  instead  unnecessary  loss  and  annoyance  is  caused  to  neu- 
trals as  well  as  to  enemies,  then  the  right  to  make  such  cap- 
tures should  be  abolished.  There  is  much  dispute  as  to  both 
of  these  questions.  In  order  to  discuss  them  fruitfully,  we 
must  take  into  account  the  present  condition  of  warfare  and 
commerce  and  national  armaments.  All  three  are  con- 
stantly changing,  and  their  changes  affect  the  material  self- 
interests  of  nations.  These  in  their  turn  affect  the  minds  of 
rulers,  who  are  not  likely  to  consent  to  a  limitation  of  bel- 
ligerent rights  from  purely  altruistic  motives. 

We  will  begin  by  stating  the  exact  nature  of  the  proposal 
which  is  generally,  but  inadequately,  described  as  the  ex- 
emption of  private  property  from  capture  at  sea  in  time  of 
war.  Several  kinds  of  private  property  are  already  exempt. 
Neutral  goods  in  neutral  vessels  and  enemy  goods  in  neutral 
vessels  are  unconfiscable,  unless  they  are  contraband  in  char- 
acter. When  innocent  neutral  goods  are  found  in  enemy 
vessels,  the  vessels  are  liable  to  seizure,  and  must  be  brought 
in  for  adjudication.  This  involves  the  bringing  in  of  the 
cargoes  also,  but  on  proof  of  neutral  character  they  are 
released.  Speaking  generally,  and  leaving  out  of  account 
special  circumstances,  the  only  case  in  which  goods  can  now 
be  captured  at  sea  is  when  they  are  enemy  goods  laden  on 
board  an  enemy  vessel.  What  is  proposed  is  to  free  from 
liability  to  seizure  both  enemy  ships  and  enemy  goods  found 
on  board  such  ships,  provided  always  that  they  are  not  im- 
plicated in  a  contraband  traffic  or  an  attempt  to  break 
blockade.  If  this  proposal  were  carried  out,  a  great  con- 
cession would  be  made  to  belligerent  ship-owners  and 
traders,  and  a  smaller  one  to  neutral  shippers,  who  would 


502  THE  LAWS   OF  WAR 

escape  the  risk  and  delay  inseparable  from  a  suit  before  a 
belligerent  prize  court.  But  the  concession  to  enemy  inter- 
ests would  not  be  quite  so  great  as  it  appears  at  first  sight. 
Inshore  fishing  boats  and  petty  local  trading  craft  are  already 
protected  from  capture,  as  also  are  cartel  ships,  hospital 
ships  —  private  as  well  as  public  —  and,  with  certain  limita- 
tions, merchantmen  found  in  an  adversary's  port  at  the 
moment  of  the  outbreak  of  hostilities  or  met  at  sea  imme- 
diately after.  We  see,  therefore,  that  a  considerable  portion 
of  the  trade  carried  on  by  enemy  vessels  is  now  free  from 
molestation.  Moreover,  the  freedom  which  it  is  proposed 
to  grant  to  the  remainder  is  limited  by  the  proviso  that  ves- 
sels and  cargoes  shall  still  be  subject  to  the  law  of  contraband 
and  blockade,  and  by  the  continued  application  to  them  of 
the  penalties  inflicted  on  vessels  that  carry  false  papers,  resist 
search,  or  engage  in  services  connected  with  warlike  opera- 
tions. Whenever  the  private  property  of  enemy  subjects 
afloat  gives  direct  aid  to  the  enemy  government  in  its  war, 
it  will  be  liable  to  capture  under  the  proposed  new  rules, 
just  as  it  is  at  present. 

The  question  at  once  arises  whether  indirect  aid  is  im- 
portant enough  to  affect  the  issue  of  a  struggle.  And  we 
have  to  remember  that  it  is  only  indirect  aid  given  by 
means  of  commerce  carried  on  under  the  belligerent  flag 
which  counts  in  the  present  connection,  for  goods  arriving 
or  departing  in  neutral  vessels  cannot  be  captured  unless 
they  are  contraband  in  character  or  engaged  in  an  attempt 
to  violate  a  blockade.  Confining  our  attention,  therefore, 
to  what  is  relevant,  we  discover  that  the  question  whether  the 
capture  of  private  property  at  sea  will  cripple  an  adversary 
and  bring  the  war  to  a  speedy  end  is  capable  of  more  answers 
than  one.  Countries  like  Norway  and  Greece,  which  possess 
a  very  large  mercantile  marine  and  a  weak  fighting  fleet,  would 
find  themselves  ruined  in  a  short  time  if  a  great  naval  power 
made  war  on  their  commerce.  Countries  like  the  United 
States,  with  a  small  mercantile  marine  and  a  powerful  navy, 


WITH  REGAED  TO  ENEMY  PROPERTY  AT  SEA    503 

would  be  able  to  support  a  struggle  at  sea  as  long  as  their 
warships  could  continue  the  conflict,  without  regard  to 
the  fate  of  the  few  merchantmen  that  navigate  under 
their  flag.  These  are  extreme  cases;  but  the  majority  of 
states  are  in  a  very  different  position.  They  are  continental, 
and  a  large  portion  of  their  external  trade  comes  and  goes 
over  their  land  frontiers.  They  possess  a  considerable 
mercantile  marine ;  but  much  of  what  they  export  and 
import  by  way  of  the  ocean  reaches  and  leaves  them  in 
foreign  vessels.  If  their  adversary  in  a  war  swept  their  com- 
mercial flag  from  the  seas,  they  would  doubtless  suffer  appre- 
ciable loss  and  inconvenience.  But,  unless  they  were  ringed 
round  by  a  circle  of  hostile  territories,  they  would  be  able 
to  obtain  across  their  land  frontiers  all  that  was  essential  for 
the  continuance  of  the  struggle,  though  at  an  increased  cost. 
And  unless  Great  Britain  was  their  opponent  they  would  be 
able  to  carry  on  by  the  aid  of  some  of  her  abundant  com- 
mercial craft  most  of  the  trade  which  could  no  longer  travel 
in  their  own  vessels.  The  chances  are  so  enormously 
against  a  combination  of  the  two  possibilities  that  it  may 
be  left  out  of  consideration.  We  may  safely  conclude  that 
what  we  may  call  the  average  state  would  not  under  present 
conditions  find  herself  crippled  in  a  war  by  the  loss  of  her 
mercantile  marine,  nor  would  she  bring  an  enemy  of  the 
same  class  to  his  knees  by  destroying  or  shutting  up  in  port 
all  his  merchant  vessels.  We  come  now  to  states  that 
are  very  small  and  weak,  and  they  need  not  detain  us  long. 
It  can  make  little  difference  to  them,  if  they  are  seriously 
attacked,  whether  the  onslaught  is  directed  against  their 
trade  or  their  territory.  In  no  circumstances  can  they 
maintain  their  independence  by  their  own  strength.  Fortu- 
nately for  humanity  worthier  considerations  than  those  of 
mere  force  preserve  their  separate  existence. 

We  have  reserved  to  the  last  a  consideration  of  the  case 
of  Great  Britain,  because  it  is  unique.  Japan  is  the  only 
other  power  that  occupies  a  position  of  similarity  in  that  it 


THE  LAWS   OF   WAR 

is  at  once  insular,  naval,  and  commercial.  But  the  differ- 
ences are  as  great  as  the  resemblances,  since  Japan  is  mili- 
tary as  well  as  naval,  and  does  not  possess  a  world-wide 
empire,  nor  is  its  foreign  trade  essential  to  the  subsistence 
of  its.  people.  To  no  other  state  is  the  security  of  its  sea- 
borne commerce  so  overwhelmingly  important  as  it  is  to 
Great  Britain,  and  no  other  state  possesses  such  enormous  means 
of  striking  at  the  sea-borne  commerce  of  its  foes.  The  first 
consideration  would  incline  British  statesmen  to  welcome  the 
proposed  immunity,  the  second  makes  for  its  rejection.  Let  us 
try  to  strike  the  balance  between  the  two,  premising  that  any 
conclusions  we  may  reach  must  be  cautiously  advanced,  seeing 
that  political,  naval,  legal,  commercial,  and  financial  experts 
speak  with  divers  tongues  and  varying  degrees  of  emphasis. 
It  is  admitted  on  all  sides  that  a  serious  attack  on  the 
overseas  trade  of  the  British  Empire  would  be  exceedingly 
dangerous,  unless  it  could  be  repelled  before  it  had  time  to 
develop.  Twelve  million  tons  of  shipping,  and  goods  to  the 
amount  of  something  like  two  thousand  million  pounds 
sterling  in  a  single  year,  form  a  big  target  for  the  aim  of 
the  commerce  destroyers  of  an  enemy.  And  it  must  be  re- 
membered that  British  ship-owners  are  cut  off  from  the  re- 
source of  transferring  their  vessels  to  neutral  flags,  not  only 
by  the  practical  certainty  that  such  transfers  would  not  be 
recognized  by  the  enemy,  but  by  the  impossibility  that  neutral 
traders  could  find  enough  capital  to  purchase,  or  enough  sea- 
men to  man,  such  an  enormous  mass  of  shipping.  In  fact 
they  would  be  unable  in  such  an  emergency  either  to  take 
over  the  merchantmen  of  the  British  belligerent,  or  to  replace 
them  by  merchantmen  of  their  own.  And  as  Great  Britain 
must  carry  on  her  trade  or  perish,  it  would  have  to  be  car- 
ried on  as  before  in  British  bottoms,  notwithstanding  the 
risks  to  which  it  was  exposed.  Yet  security  is  the  life-blood 
of  commerce,  and  any  losses  in  one  quarter  would  send  up 
freights  and  prices  all  over  the  Empire,  and  might  easily 
cause  a  panic  far  more  disastrous  than  a  bad  defeat. 


WITH  REGARD  TO  ENEMY  PROPERTY  AT  SEA    505 

British  naval  experts  are  confident  of  the  ability  of  the 
royal  navy  to  ward  off  these  dangers.  They  point  out  that 
the  simultaneous  reduction  in  number  and  increase  in  ton- 
nage of  merchantmen  renders  the  task  more  easy.  Wire- 
less telegraphy,  they  argue,  will  send  warnings  of  danger  to 
vessels  far  away  from  land,  and  enable  them  to  summon  aid 
from  a  large  area.  As  long  as  command  of  the  sea  is  retained, 
food  and  raw  material  will  reach  Great  Britain  pretty  much 
as  usual,  and  her  manufactures  will  find  their  way  in  security 
to  their  accustomed  markets.  As  to  the  danger  of  panic  aris- 
ing from  a  few  chance  captures  and  a  slight  rise  of  prices, 
some  scheme  of  national  indemnity  for  losses  would  prevent 
anything  of  the  kind.  The  authorities  who  reason  thus  gen- 
erally go  on  to  declare  that  the  British  navy  could  drive  from 
the  face  of  the  ocean  the  mercantile  flag  of  any  possible  foe, 
and  thus  put  such  financial  pressure  on  him  that  he  would 
be  obliged  to  give  up  the  contest.  Confident  of  this,  they 
strongly  oppose  the  concession  of  any  further  immunity  to 
private  property  at  sea.  They  are  convinced  that  it  would 
mean  the  surrender  of  the  one  weapon  whereby  Great  Britain 
could  bring  to  an  end  a  war  with  a  great  mercantile  power, 
since  she  has  no  army  strong  enough  to  invade  a  powerful 
country,  and  strike  at  its  capital  after  her  fleet  has  defeated 
its  navy  and  obtained  undisputed  command  of  the  waters 
that  wash  its  coasts. 

It  is  impossible  to  rely  with  any  degree  of  certainty  on  the 
realization  of  these  sanguine  anticipations.  Foreign  authori- 
ties do  not  seem  very  sure  of  the  absolute  security  of  British 
commerce  in  the  stress  of  a  great  war.1  Even  friendly  critics, 
whose  predilections  are  in  favor  of  Great  Britain  against  any 
country  but  their  own,  contemplate  as  a  possibility  serious 
disasters  to  her  mercantile  marine.2  It  does  not  seem  reason- 
able to  expect  nothing  but  a  course  of  uninterrupted  victories 

1  Dupuis,  La  Guerre  Maritime,  §  64. 

2  See  Article  by  Admiral  C.  H.  Stockton  in  The  American  Journal  of  In- 
ternational Law,  vol.  I,  No.  4,  pp.  937-943. 


506  THE  LAWS   OF   WAR 

for  her  navy.  And  yet  a  temporary  reverse,  the  loss  of  the 
command  of  an  important  ocean  highway  for  a  few  weeks, 
would  work  such  havoc  with  her  commerce  that  it  might 
take  years  to  recover  itself.  Disaster  is  at  least  possible, 
and  the  possibility  is  so  terrible,  involving  as  it  does  the  pros- 
pect of  starvation  and  bankruptcy,  that  it  might  be  wise  to 
avoid  it  by  consenting  to  the  immunity  of  private  property 
at  sea,  even  if  an  effective  means  of  striking  at  a  possible  en- 
emy were  lost  thereby.  But,  be  the  weapon  of  capture  ever 
so  effective,  it  could  not  be  used  against  a  power  that  had 
little  or  no  mercantile  marine.  And  is  it  likely  to  be  as  ef- 
fective as  is  generally  supposed,  even  when  the  enemy  is 
largely  dependent  for  his  wealth  and  warlike  resources  on 
ocean-borne  commerce  carried  on  by  his  own  merchantmen  ? 
Unless  such  an  enemy  was  an  insular  power,  the  destruction 
of  his  mercantile  marine  would  mean  the  transfer  of  part  of 
his  external  trade  to  neutral  vessels  and  a  great  increase  of 
traffic  across  his  land  frontiers.  And  if  the  enemy  was  insu- 
lar, blockade  would  be  a  far  more  effective  weapon  than  the 
capture  of  his  trading  ships  at  sea,  for  it  would  cripple  all 
trade  with  him,  including  that  of  neutrals.  Seeing  then  that 
there  is  doubt  as  to  the  safety  of  British  trade  in  time  of  war, 
and  doubt  as  to  the  possibility  of  war  being  quickly  ended 
by  the  wholesale  capture  of  the  enemy's  merchant  vessels  on 
the  part  of  the  British  navy,  we  may  conclude  that  Great 
Britain  would  gain  more  than  she  would  lose  by  the  adoption 
of  the  policy  of  immunity.  She  would  secure  for  herself 
what  is  essential  not  only  to  her  welfare,  but  to  her  existence 
as  a  great  power,  the  security  of  her  maritime  commerce. 
And  the  price  paid  for  so  great  a  boon  would  be  the  surren- 
der of  a  weapon  that  might  easily  break  in  her  hand,  while 
she  retained  in  full  use  a  much  more  potent  one. 

If  innocent  sea-borne  commerce  were  once  freed  from  liabil- 
ity to  capture,  there  would  be  little  likelihood  of  a  return  to 
present  conditions.  Everywhere  commercial  interests  would 
be  strongly  and  actively  in  favor  of  the  new  rule.  Great 


WITH  REGARD  TO  ENEMY  PROPERTY  AT  SEA    507 

Britain,  the  power  that  has  most  to  lose  by  a  relapse,  need 
not  fear  that  her  enemy  in  a  great  maritime  struggle  would 
suddenly  take  to  seizing  her  harmless  merchantmen.  Re- 
putable powers  will  not  dishonor  their  signatures  to  recent 
international  agreements,  and  all  powers,  reputable  and  dis- 
reputable alike,  will  find  excellent  reasons  for  keeping  the 
particular  agreement  in  question.  No  maritime  and  com- 
mercial state  would  dare  to  flout  the  merchants  of  all  nations. 
Great  Britain  does  about  half  the  carrying  trade  of  the 
world.  Every  individual  who  sends  goods  to  sea  under  her 
flag  would  be  directly  interested  in  the  safety  of  her  vessels. 
If  this  was  threatened,  neutral  governments  would  be  forced 
by  the  pressure  of  public  opinion  to  interfere  with  pointed 
remonstrances,  and  the  British  navy  would  be  ordered  to  re- 
taliate by  vigorous  reprisals.  In  a  very  little  time  the  rash 
and  faithless  aggressor  would  find  himself  compelled  to  re- 
spect the  rule  he  had  attempted  to  violate.  The  suggestion 
that  the  grant  of  the  immunity  we  advocate  would  lead  to  a 
great  stretching  of  the  law  of  contraband  and  blockade,  in 
order  to  make  enemy  vessels  amenable  under  one  head  or 
the  other,  has  been  deprived  of  force  by  the  Declaration  of 
London  of  1909.  Its  provisions  bid  fair  to  become  the  es- 
tablished law  of  the  civilized  world ;  and  if  this  prospect  is 
realized,  the  present  uncertainties  will  vanish,  and  a  set  of 
clear  and  consistent  rules  will  be  substituted  for  divergent 
doctrines  and  disputed  practices. 

Our  conclusion  then  is  that  on  the  whole  the  proposed 
change  would  be  beneficial.  It  would  certainly  decrease  the 
area  of  destruction,  no  mean  achievement  in  an  age  that  is 
about  to  add  warfare  in  the  air  to  warfare  on  land  and  war- 
fare at  sea.  That  it  would  increase  the  length  of  wars,  and 
by  so  doing  add  to  the  loss  and  misery  they  inflict,  we  have 
seen  to  be  a  proposition  which  will  not  stand  the  test  of  close 
examination.  In  the  new  order  of  things  coasts  could  still 
be  blockaded,  contraband  of  war  captured,  and  assembling 
transports  seized.  And  if  on  the  other  hand  some  diminu- 


508  THE  LAWS  OF  WAR 

tion  of  naval  forces  was  found  to  be  possible  when  the  duty 
of  protecting  ordinary  commerce  was  no  longer  laid  on  them, 
the  overburdened  nations  would  have  cause  to  rejoice.  To 
save  from  destruction  an  innocent  and  useful  species  of  pri- 
vate property,  and  at  the  same  time  to  lessen  the  burden  that 
war  fixes  on  the  shoulders  of  industry,  would  be  a  noble  task. 
Let  us  hope  that  the  next  Hague  Conference  will  accom- 
plish it. 


CHAPTER  VI 

THE    AGENTS,   INSTRUMENTS,   AND    METHODS    OP   WARFARE 

§  195 

THE  employment  of  certain  agents,  instruments,  and 
methods  of  warfare  has  given  rise  to  many  disputed  questions. 
The  agents  of  war-  With  regard  to  agents,  we  may  say  with  confi- 
fare-  dence  that  soldiers  and  sailors  of  the  regular 

armies  and  navies  of  the  belligerents,  including  fully  organ- 
ized reserves  and  auxiliary  forces,  are  legitimate  combatants. 

The  only  exception  to  this  rule  occurs  when  a  belligerent 
finds  some  of  his  own  subjects  in  the  ranks  of  his  enemies. 
In  that  case  he  may  execute  them,  if  they  fall  into  his  power. 
Neutral  subjects  may,  however,  join  the  fighting  forces  of 
a  belligerent  without  fear  of  anything  beyond  the  ordinary 
risks  incident  to  hostilities.  On  the  one  hand  no  special 
severities  may  be  exercised  against  them,  and  on  the  other 
they  cannot  claim  the  protection  of  the  neutral  character 
they  have  abandoned.1  They  are  neither  more  nor  less  than 
ordinary  combatants.  If  recruiting  agencies  have  been 
established  on  neutral  territory,  or  if  a  steady  stream  of  re- 
cruits has  been  allowed  to  flow  from  neutral  soil  to  a  bellig- 
erent army  or  navy,  the  other  belligerent  may  have  a  good 
case  against  the  neutral  government  for  culpable  partiality.2 
But  he  has  no  right  to  visit  his  displeasure  on  individual 
combatants  of  neutral  nationality.  The  question  has  some- 
times arisen  whether  neutral  subjects  resident  in  a  belligerent 
country  may  be  compelled  to  enter  the  ranks  of  its  fighting 

1  Fifth  Hague  Convention  of  1907,  Article  17. 
a  See  part  IV,  ch.  iii. 

609 


510      AGENTS,   INSTRUMENTS,   AND  METHODS   OF  WARFARE 

forces.  The  answer  must  be  in  the  negative,  except  perhaps 
in  the  rare  cases  of  invasion  by  cruel  savages  or  revolt  by 
the  enemies  of  social  order.1 

When  we  pass  beyond  the  proposition  that  the  duly  enrolled 
members  of  organized  armies  and  navies  are  lawful  combat- 
ants, we  enter  into  a  region  of  doubt  and  difficulty.  Some 
agents  of  warfare  are  deemed  lawful  in  certain  circum- 
stances and  under  certain  conditions,  but  not  in  other  circum- 
stances and  under  other  conditions.  Others  are  forbidden 
altogether  according  to  one  set  of  authorities,  while  another 
set  allows  them  with  various  restrictions.  The  only  course 
to  follow,  in  order  to  attain  satisfactory  results,  is  to  consider 
each  of  these  difficult  cases  separately. 

§196 

We  will  take  first  the  question  of  whether  it  is  lawful  to 
use 

Gruerilla   troops, 

and,  if  so,  under  what  conditions  of  leadership,  organization, 
and  armament.  They  may  be  described  as  bands  not  belong- 
ing to  a  regular  army  and  not  under  strict 
military  discipline,  but  nevertheless  operating 
actively  in  the  field  and  devoting  themselves  entirely  and 
continuously  to  warlike  avocations  without  intervals  of  the 
peaceful  pursuits  of  ordinary  life.  They  often  perform  valu- 
able services  to  their  own  side  by  attacking  convoys  of  arms 
and  provisions  on  the  way  to  the  enemy,  cutting  off  his 
communications,  blowing  up  bridges  and  destroying  railways 
in  his  rear,  intercepting  his  despatches,  and  harassing  him 
in  the  numberless  ways  that  patriotic  ingenuity  can  suggest 
and  superior  mobility  carry  out.  Knowledge  of  the  country, 
coolness,  and  daring  are  the  conditions  of  success  in  guerilla 
warfare.  With  small  means  it  may  inflict  irreparable  dam- 

i  Hall,  International  Law,  5th  ed.,  pp.  207-209. 


AGENTS,   INSTRUMENTS,   AND   METHODS   OF   WARFARE       511 

age  upon  the  side  against  which  it  is  directed ;  but  those  who 
engage  in  it  are  free  from  many  of  the  restraints  of  more 
regular  combatants,  while  at  the  same  time  their  opportuni- 
ties for  plunder  and  outrage  are  numerous  and  tempting.  It 
is  easy,  therefore,  to  understand  the  unfavorable  opinions  of 
partisan  bands  usually  expressed  by  great  military  authori- 
ties.1 When  standing  armies  became  common  in  Western 
Europe  professional  soldiers  were  unwilling  to  allow  the 
rights  of  lawful  combatants  to  any  but  those  belonging  to  the 
regular  forces  of  the  enemy.  But  in  the  great  cycle  of  wars 
which  began  with  the  French  Revolution,  the  most  powerful 
states  of  the  European  continent  found  good  reason  to  rely 
on  the  patriotism  of  their  populations.  Irregular  troops  came, 
therefore,  to  be  regarded  as  permissible  even  by  military  men 
who  often  busied  themselves  with  the  organization  of  popu- 
lar levies.  The  principle  that  a  country  may  be  defended 
by  forces  other  than  its  standing  army  was  conceded,  the 
degree  of  irregularity  which  may  be  tolerated  forming  the 
only  problem  left  for  solution. 

In  the  Franco-Prussian  war  of  1870  the  French  raised  ir- 
regular bands  of  Francs-  Tireurs,  which  the  Prussians  declined 
to  recognize  as  lawful  combatants  unless  each  individual  mem- 
ber of  them  had  been  personally  called  out  by  legal  authority, 
and  wore  a  uniform  or  badge  irremovable  and  sufficient  to 
distinguish  him  at  a  distance.  At  the  Brussels  Conference 
of  1874 2  the  matter  was  thoroughly  discussed  from  every 
point  of  view.  The  representatives  of  the  great  military 
powers  naturally  desired  to  keep  spontaneous  movements 
within  the  narrowest  possible  bounds,  while  the  delegates 
from  the  secondary  states,  who  have  to  rely  for  their  defence 
chiefly  upon  the  patriotism  of  their  people,  endeavored  to 
give  the  widest  extension  to  the  right  of  resistance  against 
an  invader.  The  differences  of  opinion  thus  brought  into 

1  e.  g.  Halleck,  International  Law,  ch.  xviii,  §  8. 

2  See  §  162. 


512      AGENTS,   INSTRUMENTS,    AND  METHODS  OF   WARFARE 

prominence  have  never  been  entirely  reconciled.  But  in  the 
matter  of  guerilla  bands  the  Conference  succeeded  in  coming 
to  an  agreement  which  was  adopted  in  1880  with  a  few 
changes  of  form  by  the  Institute  of  International  Law,1  and 
received  the  consecration  of  general  assent  when  the  Hague 
Conferences  of  1899  and  1907  embodied  it  in  the  first  Article 
of  their  Regulations  respecting  the  Laws  and  Customs  of 
War  on  Land.  2  This  Article  may  now  be  regarded  as  part 
of  the  war  law  of  the  civilized  world.  It  placed  on  an  equal 
footing  as  regards  rights  and  obligations  regular  armies,  and 
volunteer  corps  which 

(a)   Are  commanded  by  a  person  responsible  for  his  subor- 
dinates, 

( J)    Wear  a  fixed  distinctive  badge,  recognizable  at  a  distance, 
(c)    Carry  arms  openly,  and, 
(cf)  Conform  in  their  operations  to  the  laws  and  customs  of 

war. 

It  is  to  be  hoped  that  the  concession  of  the  first  of  these  con- 
ditions marks  the  definite  abandonment  of  the  theory  that 
members  of  partisan  bodies  must,  individually  and  collec- 
tively, be  summoned  to  arms  by  their  government  and  con- 
nected directly  with  its  military  system.  The  second 
condition  is  just  and  reasonable,  if  it  be  not  interpreted  to 
mean  that  the  distance  must  be  considerable.  What  really 
matters  is  that  members  of  guerilla  bands  should  be  distin- 
guishable from  ordinary  civilians  by  the  naked  eye.  A  badge 
which  is  visible  as  far  off  as  the  inconspicuous  uniform  of 
modern  infantry  should  be  amply  sufficient.  The  great  point 
to  be  secured  is  its  irremovable  character.  A  man  cannot 
have  the  slightest  moral  right  to  the  privileges  of  a  comba- 
tant, if  he  appears  one  minute  as  the  armed  defender  of  his 

1  Tableau  General  de  Ulnstitut  de  Droit  International,  p.  173. 

2  Higgins,  The  Hague  Peace  Conferences,  p.  219 ;  Whittuck,  International 
Documents,  pp.  38,  129  ;  Scott,   The  Hague  Peace  Conferences,  vol.  n,  pp. 
117,  377  ;  Supplement  to  the  American  Journal  of  International  Law,  vol.  II, 
Nos.  1  and  2,  p.  97. 


AGENTS,   INSTRUMENTS,    AND   METHODS   OF   WARFARE       513 

country  and  the  next  as  a  harmless  peasant  tilling  his  fields 
in  peace  and  quietness.  The  third  condition  is  justified  by 
the  same  consideration.  The  inhabitants  of  an  invaded 
country  must  choose  whether  they  will  fight  or  whether 
they  will  go  about  their  ordinary  business.  They  cannot 
do  both.  The  fourth  condition  is  demanded  by  humanity. 
Irregular  soldiers  who  do  not  conform  to  the  laws  of  war 
become  mere  criminals  and  deserve  the  severest  punishment. 

On  the  whole  there  seems  reason  to  be  satisfied  with  these 
rules.  They  give  scope  to  the  spontaneous  activities  of 
patriotism,  without  neglecting  either  the  claims  of  mercy  or 
a  reasonable  consideration  for  the  safety  of  the  invading 
belligerent.  But  nevertheless  they  are  so  elastic  that  in 
practice  a  great  deal  will  depend  on  the  character  and  tem- 
perament of  the  generals  in  command.  It  should  be  noted 
that  the  rules  deal  throughout  with  bodies  of  men,  not  with 
individuals.  If  a  member  of  a  band  is  captured  while  de- 
tached by  his  chief  for  separate  service,  such  as  cutting  a 
telegraph  wire  or  blowing  up  a  bridge,  he  must  prove  that  he 
belongs  to  an  organized  unit,  before  he  can  claim  the  treat- 
ment of  a  lawful  combatant.  Moreover,  it  is  assumed  that 
the  bands  are  fighting  for  a  cause  and  a  government  still  in 
existence.  If  they  keep  up  a  partisan  warfare  in  hills  and 
remote  fastnesses  after  the  complete  destruction  of  the  state 
authority  in  whose  interests  they  are  fighting,  in  strictness  of 
law  they  have  ceased  to  be  entitled  to  the  rights  of  comba- 
tants.1 

There  are  a  few  cases  not  covered  by  the  Hague  Code, 
though  they  might  easily  occur  in  war,  such,  for  instance,  as 
the  defence,  by  isolated  individuals  or  small  groups  acting 
on  the  spur  of  the  moment,  of  their  households  against  out- 
rage or  their  property  against  plunder,  or  the  destruction  in 
similar  circumstances  of  roads  or  bridges  in  unoccupied 
districts.  This  latter  was  brought  forward  at  the  Brussels 
Conference,  but  dropped  without  being  settled,  owing  to 
i  Oppenheim,  International  Law,  vol.  II,  pp.  67,  68. 


514       AGENTS,   INSTRUMENTS,   AND  METHODS   OF   WARFARE 

the  expression  of  a  general  opinion  that  it  would  be  unwise 
to  attempt  to  formulate  any  rule  that  would  cover  it. l 
Matters  such  as  these  come  under  "  the  principles  of  the  law 
of  nations,  as  they  result  from  the  usages  established  between 
civilized  nations,  from  the  laws  of  humanity  and  the  require- 
ments of  the  public  conscience."  a 


We  have  next  to  consider  the  subject  of 
Levies  en  masse. 

Not   only   do   they  differ   from  irregular  bands  in   some 

essential  circumstances,  but  they  also  differ  so  widely  among 

themselves   that   the   same  provisions  will  not 

Levies  en  masse. 

apply  to  all  of  them.  When  the  whole  man- 
hood of  a  country  is  called  to  arms  by  its  government  and 
drafted  into  its  armies,  there  can  be  no  doubt  as  to  the 
legality  of  the  process.  Such  a  levy  is  merely  a  specially 
drastic  and  comprehensive  method  of  recruiting.  Its  adop- 
tion is  a  matter  of  internal  policy,  not  of  international  con- 
cern. A  good  example  is  to  be  found  in  the  French  levy 
en  masse  of  1793,  which  filled  the  ranks  of  the  revolutionary 
armies  with  brave  and  devoted  soldiers.  Another  is  afforded 
by  the  Boer  War  of  1899-1902,  when  all  the  able-bodied 
men  of  the  Transvaal  and  the  Orange  Free  State  were 
placed  in  the  field.  The  British  Government  would  have 
had  no  right  to  regard  them  as  unauthorized  combatants  on 
that  account,  though  it  might,  had  it  so  desired,  have  raised 
the  question  on  the  point  of  the  absence  of  distinguishing 
marks.  Another  kind  of  levy  en  masse  may  take  place  in 
countries  where  the  entire  male  population  is  passed  through 
the  army.  If  at  the  approach  of  an  invader  the  people  rise, 
either  spontaneously  or  in  obedience  to  an  order  from  the 

1  British  Parliamentary  Papers,  Miscellaneous,  No.  1  (1875),  p.  265. 

2  Preamble  of  the  Fourth  Hague  Convention  of  1907. 


AGENTS,   INSTRUMENTS,   AND   METHODS   OF   WARFARE       515 

government,  and  at  once  adopt  the  military  organization  to 
which  they  have  been  trained,  they  are  to  be  regarded  as 
regular  combatants.  The  Delegate  of  Germany  at  the 
Brussels  Conference  alluded  to  this  as  a  possible  case,  and 
pointed  out  that  in  his  own  country  there  was  a  Landstrum 
numbering  nearly  three  million  men,  who  would  form  the 
levy  en  masse  in  case  of  necessity.1 

But  a  different  question  arises  when  the  ordinary  untrained 
inhabitants  of  a  non-occupied  district  rise  at  the  approach  of 
an  invader,  and  either  alone  or  in  conjunction  with  regular 
troops  endeavor  to  beat  him  off.  This  is  a  not  infrequent  case ; 
and  at  the  Brussels  Conference  of  1874  the  smaller  powers  of 
Europe  contended  almost  passionately  for  its  legality. 
After  a  long  discussion  it  was  agreed  to  consider  such 
bodies  of  men  as  belligerents  "  if  they  respect  the  laws  and 
customs  of  war."  The  first  Hague  Conference  laid  down 
the  same  condition,  and  the  second  added  another  to  it. 
They  must  carry  arms  openly.  If  these  two  simple  and 
necessary  requirements  are  complied  with,  the  population  of 
a  territory  that  has  not  been  occupied  who  on  the  approach 
of  an  invader  spontaneously  take  up  arms  to  resist  him  are 
deemed  lawful  combatants,  even  though  they  have  not  had 
time  to  organize  themselves  in  the  manner  provided  for 
irregular  bands.  It  was  rightly  considered  that  the  masses 
of  a  popular  levy  extending  over  a  considerable  area  of 
country  would  be  sufficient  evidence  of  their  own  hostile 
character,  even  though  no  badges  were  worn  by  the  individ- 
uals of  whom  they  were  composed.  But  it  may  be  questioned 
whether  invaded  states,  in  their  own  interests,  ought  not  to 
insist  that  there  should  be  at  the  head  of  the  levy  a  respon- 
sible leader,  since  Article  3  of  the  fourth  Hague  Convention 
of  1907  makes  a  belligerent  government  liable  to  pay  com- 
pensation for  violations  of  the  laws  of  war  on  land  "  com- 
mitted by  persons  forming  part  of  its  armed  forces."  And 
when  the  rising  takes  place  in  a  limited  area,  it  may  be 

1  British  Parliamentary  Papers,  Miscellaneous,  No.  1  (1875),  p.  263. 


516       AGENTS,   INSTRUMENTS,   AND  METHODS   OF    WARFARE 

difficult  to  tell  whether  those  who  rise  are  to  be  regarded  as 
a  guerilla  band  or  as  a  levy  en  masse.  This  difficulty 
occurred  during  the  Japanese  invasion  of  the  island  of 
Sakhalin  in  1905.  The  town  of  Vladimirowka  was  defended 
by  a  number  of  Russian  convicts.  They  had  no  mark 
whereby  they  could  be  distinguished  from  the  ordinary  in- 
habitants, and  they  were  not  under  the  command  of  any 
chief.  If  they  claimed  to  be  an  irregular  band,  they  were 
leaderless  and  badgeless.  If  they  claimed  to  be  a  popular 
levy  resisting  invasion  by  a  spontaneous  impulse,  they  were 
not  inhabitants.  In  neither  case  did  they  know  or  observe 
the  laws  and  customs  of  war.  About  a  hundred  and  twenty 
of  them  were  shot  after  trial  by  court  martial,  though  their 
captors  were  not  clear  in  what  capacity  to  regard  them.1 
The  decision  to  execute  them  was  probably  right,  since  they 
satisfied  the  conditions  of  neither  kind  of  irregular  belliger- 
ency. But  it  is  easy  to  see  that  in  less  conclusive  circum- 
stances the  lives  of  prisoners  might  depend  on  whether  they 
were  regarded  as  members  of  a  band  or  members  of  a  levy 
en  masse. 

A  case  apart  from  all  the  others,  and  least  likely  of  any 
to  be  treated  with  leniency,  occurs  when  the  inhabitants  of 
occupied  districts  break  out  into  a  general  insurrection 
against  the  invaders.  The  army  of  occupation  is  obliged 
for  the  sake  of  its  own  safety  to  treat  such  insurgents  with 
the  utmost  severity.  The  codes  of  the  Brussels  Conference 
and  the  two  Hague  Conferences  are  silent  on  the  subject  of 
the  fate  in  store  for  them,  and  so  is  the  manual  of  the  In- 
stitute of  International  Law,  while  Article  85  of  the  In- 
structions for  the  Armies  of  the  United  States  renders  them 
liable  to  the  death  penalty  under  the  name  of  "war  rebels." 
The  constant  conflict  between  the  views  of  the  great  mili- 
tary powers  and  the  secondary  states  always  became  more 
marked  than  usual  when  their  treatment  was  discussed.  In 
consequence  no  mention  was.  made  of  the  matter  in  the 

1  Ariga,  La  Guerre  Busso-Japonaise,  pp.  86-88. 


AGENTS,   INSTRUMENTS,   AND   METHODS   OF   WARFARE      517 

Reglement  attached  to  the  Hague  Convention  with  respect  to 
the  Laws  and  Customs  of  War  on  Land ;  but  there  can 
be  no  doubt  that  an  invader  is  allowed  by  the  laws  of  war, 
as  deduced  from  usage,  to  treat  all  concerned  in  such  ris- 
ings as  unauthorized  combatants.  Indeed,  this  proposition 
is  not  seriously  controverted.  The  objections  raised  are 
directed  against  any  verbal  recognition  of  it  that  would 
seem  tantamount  to  a  surrender  of  high-souled  patriots  by 
their  own  government  to  the  enemy's  executioners.1 

§198 
We  pass  on  to  deal  with  the  employment  of 

Savage  and  imperfectly  civilized  troops. 

They  may  be  embodied,  drilled,  and  disciplined  as  soldiers 
in  the  regular  armies  of  civilized  powers,  or  they  may  be  used 
as  allies  and  auxiliaries  organized  in  their  own 

•  .  Savage  and  imper- 

way  and  under  the  command  of  their  own  chiefs,  fectiy  civilized 
In  the  latter  case  the  amount  of  control  which  can 
be  exercised  over  them  is  very  small ;  and  it  is  much  to  be 
wished  that  International  Law  could  prohibit  the  acceptance 
of  assistance  from  such  unsatisfactory  allies.  But  nothing 
of  the  kind  has  been  done.  Civilized  states  receive  with- 
out scruple  the  aid  of  savage  tribes  in  their  warfare  with  bar- 
barous or  semi-barbarous  foes.  Even  when  both  the  prin- 
cipal belligerents  are  civilized,  they  have  sometimes  made 
use  of  barbarian  auxiliaries  in  their  struggles,  but  of  late 
years  less  frequently  than  before.  Throughout  the  eighteenth 
century  the  English  and  French  habitually  employed  Red 
Indian  Tribes  in  their  North  American  wars.  The  British 
let  them  loose  against  the  revolted  Colonists,  and  the  Colo- 
nists did  their  best  to  turn  them  against  Great  Britain. 
The  Russians  sent  Circassians  into  Hungary  in  1848,  and 
the  Turks  flooded  Bulgaria  with  Bashi-Bazooks  in  the  war 

1  British  Parliamentary  Papers,  Miscellaneous,  No.  1  (1875),  pp.  255  263. 


518       AGENTS,   INSTRUMENTS,   AND   METHODS   OF   WARFARE 

of  1877.  But  in  the  Boer  War  of  1899-1902  both  sides  ab- 
stained from  sending  the  natives  into  the  field  as  fighting 
men.  The  stress  of  conflict  however  led  to  their  employ- 
ment in  work  which  was  barely  distinguishable  from  that  of 
soldiers.  The  British  used  them  as  drivers  and  guides,  and 
sometimes  as  spies.  The  Boers,  for  whom  they  dug  trenches, 
frequently  shot  those  who  had  rendered  what  were  deemed 
war  services  to  the  invaders.  The  British  then  armed  their 
Kaffirs  for  purposes  of  self-defence,  and  in  the  last  part  of 
the  war  employed  them  as  night-watchmen  on  the  block- 
house lines  and  along  the  railways.1  We  may  perhaps  ven- 
ture to  hope  that  the  force  of  enlightened  opinion  will  before 
long  compel  the  leading  members  of  the  family  of  nations  to 
refrain  from  putting  savages  or  semi-savages  into  the  field, 
unless  their  foes  themselves  are  barbarians.  For  the  disuse  of 
savage  allies  in  these  latter  cases  we  shall  probably  have  to 
wait  till  the  feeling  of  human  brotherhood  has  grown  much 
stronger  than  it  is  to-day. 

There  can  be  no  doubt  about  the  legality  of  taking  recruits 
from  barbarous  or  inferior  races  and  forming  them  into  troops 
and  regiments.  If  they  are  placed  under  military  discipline, 
organized  as  part  of  the  army  of  a  civilized  state,  and  led  by 
civilized  officers,  they  may  be  used  without  violation  of  the 
laws  of  war.  The  United  States  has  its  negro  cavalry  which 
it  employed  in  the  war  of  1898  against  Spain;  2  the  French 
their  Turco  brigades ;  the  British  their  Ghoorka  regiments. 
There  is  hardly  a  power  possessed  of  a  colonial  empire,  or 
ruling  over  martial  races,  which  does  not  enrol  native  troops. 
International  Law  neither  forbids  their  enlistment  nor  places 
limitations  upon  their  employment.  But  it  would  certainly 
be  humane  to  reserve  them  for  use  against  border  tribes 
and  in  warfare  with  people  of  the  same  degree  of  civilization 
as  themselves. 

1  Times  History  of  the  War  in  South  Africa,  voL  V,  pp.  249-251,  255. 

2  Roosevelt,  Bough  Riders,  p.  73. 


AGENTS,    INSTRUMENTS,    AND   METHODS   OF   WARFARE       519 

§199 

We  must  now  consider  the  legality  of 

Spies. 

Article  29  of  the  Hague  Conference  Code  for  land  war- 
fare lays  down  that  "a  person  can  only  be  considered 
as  a  spy  when,  acting  secretly  or  under  false 
pretences,  he  obtains  or  tries  to  obtain  in- 
formation in  the  zone  of  operations  of  a  belligerent  with 
the  intention  of  communicating  it  to  the  hostile  party." 
It  goes  on  to  declare  that  soldiers  who  have  penetrated 
within  the  enemy's  lines  for  the  purpose  of  obtaining 
information,  without  disguising  their  military  character, 
are  not  to  considered  as  spies;  neither  are  military  men 
and  civilians  carrying  out  their  mission  openly,  and  charged 
with  the  transmission  of  despatches  either  for  their  own 
army  or  for  that  of  the  enemy.  It  also  excludes  individuals 
sent  in  balloons  to  carry  despatches  or  perform  other  services. 
Article  30  lays  down  that  "  a  spy  taken  in  the  act,  shall  not 
be  punished  without  previous  trial;  "  and  Article  31  adds 
that  the  treatment  of  a  prisoner  of  war  is  to  be  accorded  to 
the  spy  who,  after  carrying  out  his  mission  and  rejoining  the 
army  to  which  he  belongs,  is  subsequently  captured  by  the 
enemy.  These  rules  embody  the  best  and  most  humane 
modern  practice,  and  indeed  go  somewhat  beyond  it  in  insist- 
ing upon  a  trial  of  the  captured  spy,  who  has  often  been  shot 
or  hanged  on  the  spot  with  scant  ceremony.  They  further 
mark  the  definite  abandonment  of  the  strange  theory  adopted 
by  the  Germans  during  the  siege  of  Paris  in  1870-1871,  that 
those  who  reconnoitred  from  balloons  were  guilty  of  espionage 
and  therefore  liable  to  the  penalty  of  death.  The  still  more 
strange  theory  of  Admiral  Alexeieff,  produced  during  the 
Russo-Japanese  War,  that  newspaper  correspondents  send- 
ing off  messages  by  wireless  telegraphy  from  neutral  steamers 


520       AGENTS,   INSTRUMENTS,   AND   METHODS   OF   WARFARE 

might  be  treated  as  spies  seems  to  have  perished  at  the  mo- 
ment of  its  birth.1 

The  customary  law  on  the  subject  of  spies  allows  com- 
manders to  use  them,  and  to  evoke  the  services  they  render 
by  the  promise  of  rewards.  But  too  often  the  taint  of 
personal  dishonor  is  held  to  attach  itself  to  them  indiscrimi- 
nately, whereas  in  reality  they  differ  from  one  another  as 
coal  from  diamonds.  This  point  is  well  brought  out  by 
a  significant  passage  in  Napier's  Peninsular  War.z  The 
author,  in  describing  how  admirably  Wellington  was  served 
in  the  matter  of  information,  says:  "He  had  a  number  of 
spies  among  the  Spaniards  who  were  living  within  the 
French  lines;  a  British  officer  in  disguise  constantly  visited 
the  French  armies  in  the  field;  a  Spanish  state-counsellor 
living  at  the  headquarters  of  the  first  corps  gave  intelli- 
gence from  that  side,  and  a  guitar-player,  of  celebrity,  named 
Fuentes,  repeatedly  making  his  way  to  Madrid,  brought  back 
advice  from  thence.  .  .  .  With  the  exception  of  the  state 
spy  at  Victor's  headquarters,  who  being  a  double  traitor  was 
infamous,  all  the  persons  thus  employed  were  very  merito- 
rious. The  greater  number,  and  the  cleverest  also,  were 
Spanish  .  .  .  who,  disdaining  rewards  and  disregarding 
danger,  acted  from  a  pure  spirit  of  patriotism,  and  are  to 
be  lauded  alike  for  their  boldness,  their  talent,  and  their 
virtue."  Considerations  such  as  these  should  serve  to  miti- 
gate the  harsh  judgments  sometimes  pronounced  on  spies 
as  a  class,  as  if  they  were  all  alike.  It  is  impossible  to 
arrive  at  any  reasoned  conclusions  unless  we  distinguish,  as 
Napier  does,  between  those  who  carry  devotion  and  patriot- 
ism to  the  point  of  risking  their  lives  in  cold  blood  and 
without  any  of  the  excitement  of  combat,  in  order  to  obtain 
within  the  enemy's  lines  information  of  the  utmost  impor- 
tance to  their  country's  cause,  and  those  who  betray  the 
secrets  of  their  own  side  for  the  sake  of  a  reward  from  its 

1  Lawrence,  War  and  Neutrality  in  the  Far  East,  2d  ed.,  pp.  85-92. 

2  Vol.  IV,  bk.  xiv,  pp.  220-221. 


AGENTS,   INSTRUMENTS,   AND  METHODS   OF  WARFARE      521 

foes.  The  first  are  heroes,  the  second  are  traitors ;  and  it  is 
the  height  of  injustice  to  visit  both  with  the  same  condem- 
nation. Military  reasons  demand  that  the  right  to  execute 
spies,  if  caught,  should  exist ;  but  unless  considerations  of 
safety  imperatively  demand  the  infliction  of  the  last  penalty, 
a  general  should  commute  it  into  imprisonment.  It  should, 
moreover,  be  clearly  recognized  that  in  many  cases  the  exe- 
cution, though  necessary  for  the  safety  of  those  who  inflict 
it  and  the  success  of  their  cause,  involves  no  more  stigma 
than  a  fatal  wound  upon  the  battle-field. 

§200 

Hitherto  we  have  dealt  with  human  agents  employed  in 
war.  We  must  now  pass  on  to  its  instruments  and  methods. 
It  will  not  be  necessary  to  deal  with  any  but  those  which  are 
prohibited,  or  allowed  only  on  conditions.  The  first  to  be 
considered  are 

Privateers. 

They  may  be  defined  as  vessels  owned  and  manned  by  private 
persons,  but  empowered  by  a  commission  from  the  state, 
called  a  Letter  of  Marque,  to  carry  on  hostili-  The  instruments 
ties  at  sea.  The  law  declared  the  commission  ™?££M 
to  be  revocable  for  bad  conduct  on  the  part  of  vateers. 
the  privateer ;  and  other  means  were  taken  to  secure  that 
she  did  not  violate  the  laws  of  war,  such  as  the  lodgment  of 
security  and  the  enforcement  of  liability  to  search  by  public 
vessels  of  the  country  whose  flag  she  carried.  But,  in  spite 
of  all  precautions,  privateers  were  always  a  most  unsatisfac- 
tory force.  At  first  neutral  as  well  as  belligerent  subjects 
were  allowed  to  cruise  against  commerce,  and  privateering 
became  a  lucrative  occupation  for  the  lawless  and  adven- 
turous spirits  who  abounded  among  sea-faring  populations. 
The  scandal  grew  so  great,  as  modern  trade  developed,  that 
in  the  eighteenth  century  most  of  the  states  of  Europe  passed 
laws  for  the  punishment  of  any  of  their  subjects  who  took 


522      AGENTS,   INSTRUMENTS,   AND  METHODS  OP  WARFARE 

Letters  of  Marque  authorizing  depredations  upon  the  com- 
merce of  any  power  with  which  they  were  at  peace.  In  the 
United  States  similar  provisions  were  placed  upon  the  Statute 
Book  by  Congress  in  1797  and  1816.  The  result  of  legisla- 
tive acts  such  as  these,  joined  with  the  higher  moral  standard 
of  which  they  were  at  once  the  symptom  and  the  effect,  was 
to  bring  to  an  end  privateering  by  neutrals.  But  there  still 
remained  the  use  as  commerce  destroyers  of  private  vessels 
belonging  to  belligerent  subjects  and  fitted  out  by  them  for 
purposes  of  personal  enrichment. 

In  Europe  opinion  turned  against  these  more  defensible 
privateers,  and,  though  they  were  freely  used  in  the  great 
struggle  between  England  and  Revolutionary  and  Imperalist 
France,  great  seamen  denounced  them,  and  charged  them 
with  hoisting  whatever  colors  were  necessary  to  effect  the 
capture  of  any  merchantmen  that  came  in  their  way.1  At 
the  commencement  of  the  Crimean  War  in  1854  England 
and  France  notified  their  determination  to  rely  upon  public 
armed  ships  alone,  and  not  to  issue  Letters  of  Marque  to 
private  individuals.  During  the  conflict  both  sides  refrained 
from  authorizing  private  vessels  to  cruise  against  commerce, 
and  at  its  close  the  abolition  of  privateering  was  decreed  by 
the  first  article  of  the  Declaration  of  Paris.  Meanwhile  in 
America  opinion  was  divided,  the  prevailing  tendency  being 
to  look  on  privateers  as  a  cheap  method  of  defence  for  a 
power  which  possessed  a  large  sea-borne  commerce  and  a 
small  navy,  which  was  the  condition  of  the  United  States  at 
that  time.  They  therefore  declined  to  sign  the  Declaration 
unless  it  included  the  further  reform  of  exempting  innocent 
private  property  at  sea  from  belligerent  capture.2  The 
question  was  allowed  to  drop,  and  American  assent  was 
withheld  from  the  Declaration.  But  privateers  were  not 
used  in  the  fierce  struggle  with  the  seceding  South,  or  in 
the  war  of  1898  with  Spain.  Indeed,  none  have  been  sent 
forth  to  prey  on  sea-borne  trade  in  any  of  the  wars  which 

1  Napier,  Peninsular  War,  vol.  IV,  appendix,  p.  497.  2  See  §  193. 


AGENTS,   INSTRUMENTS,   AND   METHODS   OF  WARFARE       523 

have  taken  place  between  civilized  nations  since  1856.  It 
can  hardly  be  doubted  that  no  more  will  be  heard  of  them  in 
future  maritime  conflicts.  Enlightened  opinion  condemns 
them,  and  the  interests  of  commerce  are  opposed  to  their 
continued  existence.  The  powers  that  still  decline  to  sign 
the  Declaration  of  Paris  may  possibly  have  escaped  the 
technical  obligation  to  refrain  from  using  them,  though  even 
this  is  doubtful,  since  universal  observance  for  more  than 
fifty  years  can  be  pleaded  in  favor  of  the  rule  of  prohibition. 
But  these  states  are  not  likely  to  run  counter  to  the  general 
sense  of  the  civilized  world,  and  bring  down  upon  themselves 
as  belligerents  the  ill-will  of  all  neutral  powers  who  possess 
a  sea-borne  trade.  And  even  if  they  were  willing  to  take 
the  risk,  the  cost  of  an  effective  cruiser  is  now  so  enormous 
that  few  private  individuals  would  be  able  to  meet  it. 

§   201 

Our  next  heading  in  connection  with  the  instruments  and 
methods  of  warfare  is 

A  Volunteer  Navy. 

This  is  a  new  product  of  creative  ingenuity,  and  it  can  best 
be  explained  by  a  brief  account  of  the  circumstances  that 
first  brought  it  before  the  world.  In  July,  1870,  A  volunteer 
at  the  beginning  of  the  great  war  between  Navy> 
France  and  Germany,  Prussia  endeavored  to  make  up  for 
the  weakness  of  its  state  navy  by  utilizing  its  merchant  ships 
for  warlike  purposes  under  special  conditions.  The  patriotism 
of  seamen  and  ship-owners  was  appealed  to,  and  they  were 
invited  to  place  themselves  and  their  vessels  at  the  service  of 
the  Fatherland.1  The  Volunteer  Navy  to  be  thus  formed  was 
to  carry  the  German  flag,  and  was  to  be  under  naval  com- 
mand and  naval  discipline.  The  officers  were  to  receive 
commissions  from  the  state  for  the  period  of  the  war,  and 
the  crews  were  in  like  manner  to  be  temporarily  enrolled  in 
1  Dupuis,  La  Guerre  Maritime,  §  83. 


524      AGENTS,  INSTRUMENTS,   AND  METHODS  OF   WARFARE 

the  government  service.  The  owners  were  to  receive  a 
certain  sum  as  hire,  and  to  be  compensated  if  the  vessels  were 
destroyed  while  under  the  control  of  the  naval  authorities. 
If  prizes  were  taken,  the  sailors  who  took  part  in  the  capture 
were  to  be  rewarded  by  money  payments.  These  offers  and 
appeals  do  not  seem  to  have  been  very  enthusiastically  re- 
ceived by  the  seamen  and  traders  of  Germany,  for  through- 
out the  war  no  ship  of  the  proposed  Volunteer  Navy  ever 
put  to  sea.1  But  outside  the  Fatherland  the  plan  attracted 
a  good  deal  of  attention.  The  French  Government  de- 
nounced it  as  a  disguised  form  of  privateering  and  a  gross 
violation  of  the  Declaration  of  Paris.  The  British  Ministry, 
when  called  upon  to  say  how  they  would  regard  it,  published 
an  opinion  of  the  Law  Officers  of  the  Crown,  who  had  come 
to  the  cautious  conclusion  that  there  was  "  a  substantial 
difference"  between  it  and  the  system  against  which  the 
first  article  of  the  Declaration  of  1856  was  directed,  and 
declared  that  they  could  not  object  to  the  Prussian  Decree.2 
Many  publicists  of  repute  discussed  the  matter,  but  no  gen- 
eral agreement  was  reached.  Calvo  and  Hall  condemned 
the  proposal,3  but  Bluntschli,  Twiss,  and  Geffcken  saw  no 
serious  objection  to  it  on  the  score  of  legality.4 

The  question  raised  in  1870  was  not  settled  by  the  collapse 
of  the  Prussian  project.  Soon  a  movement  began  in  naval 
affairs  similar  to  that  whereby  militia  and  volunteer  corps 
gradually  won  recognition  in  land  warfare.  In  the  winter 
of  1877-1878,  when  there  was  imminent  danger  of  hostilities 
between  England  and  Russia,  the  latter  power  accepted  the 
offer  of  a  patriotic  association  to  create  a  Volunteer  Fleet, 
the  vessels  of  which  were  to  be  purchased  by  private  sub- 

1  Moore,  International  Law  Digest,  vol.  VII,  pp.  540,  641. 

2  British  Parliamentary  Papers,  Franco-German  War,  No.l  (1871),  p.  22. 
8  Calvo,  Droit  International,  §  2086 ;  Hall,   International  Law,  5th  ed., 

pp.  527-529. 

4  Bluntschli,  Article  in  Revue  de  Droit  International,  vol.  IX,  p.  552 ; 
Twiss.  Belligerent  Sight  on  the  High  jSeas  since  the  Declaration  of  Paris, 
pp.  12-14  ;  Geffcken,  Note  to  Heffter,  Droit  International  de  V Europe,  p.  279. 


AGENTS,   INSTRUMENTS,   AND   METHODS   OF   WARFARE       525 

scription,  but  made  over  to  state  control  during  the  contem- 
plated war,  and  commanded  by  officers  of  the  imperial  navy. 
Fortunately,  the  questions  at  issue  were  settled  by  the  Treaty 
of  Berlin  ;  but  the  Russian  Volunteer  Fleet  survived  the 
circumstances  that  gave  it  birth,  and  exists  at  the  present 
time.  It  receives  an  annual  subsidy  from  the  government 
on  certain  conditions  as  to  the  number  and  efficiency  of  the 
cruisers,  and  its  ships  are  regularly  employed  in  carrying 
government  stores,  convicts,  exiles,  troops,  and  officials  be- 
tween St.  Petersburg  or  Odessa  and  Vladivostock.  The 
Minister  of  Marine  appoints  their  commanders,  who  may  be 
naval  officers  on  active  service.  Their  crews  also  may  be 
supplied  by  the  imperial  navy.  In  time  of  war  the  vessels 
of  the  Volunteer  Fleet  may  be  transferred  to  the  naval  or 
military  departments  by  administrative  order.1.  Though  the 
Sultan  has  been  constrained  by  diplomatic  pressure  to  regard 
them  as  merchant  vessels,  in  order  that  they  may  freely  pass 
the  Dardanelles  and  the  Bosphorus,  which  are  closed  in  time 
of  peace  to  the  men-of-war  of  foreign  states, 2  it  is  difficult  to 
resist  the  conclusion  that  "  they  are  properly  to  be  considered 
as  already  belonging  to  the  imperial  navy."3  Great  Britain 
and  America  have  adopted  a  somewhat  different  system.  The 
former  led  the  way  in  1887  by  entering  into  agreements  with 
the  Cunard  Line,  the  White  Star  Line,  and  other  great 
steamship  companies,  whereby,  on  consideration  of  an  annual 
subsidy,  they  agreed  to  sell  or  let  certain  swift  vessels  to  the 
government  at  a  fixed  price  and  on  short  notice,  and  to  build 
new  ships  according  to  plans  to  be  approved  by  the  Admiralty, 
who  were  to  be  at  liberty  to  acquire  them  on  terms  similar 
to  those  accepted  in  the  case  of  the  existing  fleet.  Half  the 
seamen  on  board  the  vessels  subject  to  these  agreements 
were  to  be  engaged  from  the  Royal  Naval  Reserve,  and  the 
Admiralty  was  to  have  the  right  of  placing  on  board  fittings 

1  Constitution  of  the  Volunteer  Fleet. 

2  See  §  89. 

8  Hall,  International  Law,  6th  ed.,  p.  529. 


526       AGENTS,   INSTRUMENTS,   AND   METHODS   OF   WARFARE 

and  other  arrangements  which  would  facilitate  the  speedy 
equipment  of  the  vessels  as  cruisers  in  the  event  of  war.1 
In  1891  the  government  of  the  United  States  acquired  pow- 
ers of  a  like  kind  over  the  vessels  of  the  American  Line, 
and  in  1898  some  of  them  were  taken  over  and  did  good 
service  during  the  war  with  Spain.2  There  is  nothing  in 
these  agreements  to  which  the  most  scrupulous  legalist  can 
object  ;  and  the  same  may  be  said  of  the  systems  adopted  by 
France,  Japan,  and  other  naval  powers,  and  also  of  the  more 
recent  British  plan  of  subsidizing  a  great  shipping  company 
to  build  according  to  Admiralty  designs  on  the  understanding 
that  the  vessels  so  constructed  will  be  taken  over  in  time  of 
war.  The  legality  of  a  Volunteer  Navy  must  depend,  like 
the  legality  of  a  Volunteer  Army,  upon  the  closeness  of  its 
connection  with  the  state,  and  the  securities  it  affords  for  a 
due  observance  of  the  laws  of  war. 

§   202 

After  considering  the  questions  arising  out  of  a  volunteer 
navy  we  turn  naturally  to  those  which  are  connected  with 

Converted  Merchantmen. 

We  have  just  seen  that  it  is  lawful  in  time  of  peace  to 
designate  and  to  some  extent  prepare  private  vessels  for  war- 
converted  mer-  like  uses,  if  when  they  take  part  in  hostilities 
chantmen.  they  act  under  state  authority  and  control. 

And  there  has  never  been  any  doubt  as  to  the  right  of  a 
belligerent  government  to  commission  merchantmen  as  men- 
of-war  under  certain  conditions.  We  have  now,  therefore, 
to  determine  what  formalities  are  necessary  in  order  to  effect 
the  change,  and  where  they  may  be  performed.  There  is 
agreement  as  to  the  first  matter,  but  serious  dissension  as  to 

1  British  Parliamentary  Papers,  Subvention  of  Merchant  Steamers  for  State 
Purposes,  1887. 

3  Moore,  International  Law  Digest,  vol.  VII,  pp.  642,  643. 


AGENTS,    INSTRUMENTS,    AND    METHODS   OF   WARFARE       527 

the  second.  The  Hague  Conference  of  1907  discussed  it  in 
vain  ;  and  it  was  one  of  the  two  important  questions  in  the 
programme  of  the  Naval  Conference  of  1908-1909  which  that 
marvellously  successful  assembly  failed  to  solve. 

Let  us  begin  with  the  points  of  agreement.  They  are 
embodied  in  the  Seventh  Hague  Convention  of  1907,  which 
lays  down  that  converted  merchantmen  do  not  possess  the 
rights  and  duties  of  war-ships  unless  they  are  placed  under., 
the  authority,  control,  and  responsibility  of  the  power  whose 
flag  they  fly.  In  addition  they  must  bear  the  external 
marks  of  the  warships  of  their  nationality,  their  commanders 
must  be  duly  commissioned  officers  in  the  service  of  the  state, 
with  their  names  inscribed  in  the  navy  lists,  their  crews 
must  be  subject  to  naval  discipline,  and  they  must  observe  in 
their  operations  the  laws  and  customs  of  war.  Moreover,  "  a 
belligerent  who  converts  a  merchant  ship  into  a  war-ship  must, 
as  soon  as  possible,  announce  such  conversion  in  the  list  of 
the  ships  of  its  war  fleet." *  It  is  a  gain  to  have  secured  these 
regulations,  though  they  do  not  deal  with  the  most  impor- 
tant question  of  all,  the  locality  where  conversion  may  be 
effected.2  The  United  States  was  so  acutely  conscious  of  this 
defect  that  it  refused  to  sign  the  Convention.3 

We  now  pass  on  to  the  point  of  acute  difference.  It 
came  into  prominence  during  the  Russo-Japanese  War,  owing 
to  the  action  of  the  Peterburg  and  the  Smolensk,  two  vessels 
of  the  Russian  Volunteer  Fleet.  Early  in  July,  1904,  they 
passed  the  Bosphorus  and  the  Dardanelles  as  merchant 
vessels.  Had  they  been  regarded  as  war-ships,  their  passage 
would  have  been  prohibited  by  the  Treaty  of  London  of 
1871,  signed  by  the  six  Great  Powers  of  Europe,  and  Turkey. 
As  merchantmen  they  crossed  the  Mediterranean  and  went 

1  Higgins,  The  Hague  Peace  Conferences,  p.  309 ;  Scott,  The  Hague  Peace 
Conferences,  vol.  II,  pp.  422-425  ;  Whittuck,  International  Documents,  pp. 
167, 258  ;  Supplement  to  the  American  Journal  of  International  Law,  vol.  II, 
Nos.  1  and  2,  pp.  134,  135. 

2  Preamble  of  Seventh  Hague  Convention  of  1907. 

8  Scott,  The  Hague  Peace  Conferences,  vol.  I,  pp.  574,  675. 


528       AGENTS,   INSTRUMENTS,   AND  METHODS   OF   WARFARE 

through  the  Suez  Canal.  Soon  after  entering  the  Red  Sea 
they  threw  off  the  mercantile  character,  mounted  guns 
which  had  hitherto  been  concealed  in  their  holds,  and  in  the 
capacity  of  war-ships  proceeded  to  cruise  against  neutral 
commerce.  On  July  13  the  Peterburg  captured  the  British 
steamer,  Malacca,  and  sent  her  back  through  the  canal  for 
trial  in  the  Baltic  port  of  Libau.  The  British  Government 
demanded  her  release,  on  the  ground  that  her  captor  had 
gained  access  to  the  open  seas  of  the  globe  as  a  merchant- 
man, and  was,  therefore,  legally  estopped  from  acting  as  a 
ship  of  war.  If  she  were  a  belligerent  cruiser,  her  proper 
place  was  the  Black  Sea  ;  and  if  she  were  a  merchantman,  she 
had  no  right  to  make  captures  anywhere.  In  either  case  the 
seizure  of  a  vessel  in  the  Red  Sea  was  illegal.  After  a 
short  period  of  active  negotiation  the  Malacca  was  released, 
and  it  was  agreed  that  the  Peterburg  and  the  Smolensk 
should  no  longer  act  as  cruisers.1  But  the  incident  caused 
the  question  of  conversion  to  be  debated  at  the  second  Hague 
Conference,  disengaged  from  the  special  circumstances  that 
were  mingled  with  it  in  1904. 

Great  Britain,  backed  by  the  United  States,  Japan,  and 
other  powers,  took  the  ground  that  a  state  could  change  its 
merchantmen  into  war-ships  only  in  its  national  ports,  to 
which  were  afterwards  added  ports  under  the  occupation  of 
its  armed  forces.  A  group  of  powers,  headed  by  Russia 
and  Germany,  claimed  liberty  of  conversion  on  the  high 
seas,  and  there  were  some  which  were  prepared  to  accord  it 
even  in  neutral  ports.  No  rule  had  been  laid  down  pre- 
viously, and  no  precedents  were  discovered.  It  was  pre- 
eminently a  case  for  international  legislation,  and  such  un- 
fortunately it  still  remains.  Arguing  on  general  principles 
it  seems  impossible  to  deny  that  a  belligerent  would  commit 
a  gross  violation  of  neutrality,  if  it  presumed  to  set  forth  one 
of  its  merchantmen  as  a  man-of-war  in  neutral  territorial 
waters.  Conversely  a  neutral  that  allowed  such  a  high  act 

1  Lawrence,  War  and  Neutrality  in  the  Far  East,  2d  ed.,  pp.  202-216. 


AGENTS,   INSTRUMENTS,   AND   METHODS   OF   WARFARE      529 

of  sovereignty  to  be  performed  by  a  belligerent  within  its 
waters  would  render  itself  liable  to  reclamations  from  the 
other  party,  which  might  suffer  great  loss  from  its  weakness, 
carelessness,  or  partiality.  At  the  end  of  the  eighteenth 
century  it  was  admitted  that  the  establishment  of  belligerent 
prize  courts  in  neutral  ports  was  a  grievous  offence ; J  and 
it  cannot  surely  be  contended  at  the  beginning  of  the 
twentieth  century  that  the  commissioning  of  belligerent 
war-ships  therein  is  anything  less.  On  the  other  hand,  the 
principle  of  territorial  sovereignty  allows  every  state  to  turn 
into  fighting  ships  whatever  members  of  its  own  mercantile 
marine  it  pleases,  in  its  own  ports  and  waters.  The  same 
principle  would  justify  the  mutual  grant  by  allies  in  a  war  of 
liberty  of  conversion  in  each  other's  ports  ;  and  the  legal 
powers  of  a  military  occupant  are  so  great  in  things  relating 
to  the  war  that  they  may  be  taken  to  include  a  right  of 
converting  in  all  territorial  waters  that  he  controls  fully  and 
continuously  by  force  of  his  arms.  All  this  would  probably 
be  conceded  by  important  maritime  powers.  But  a  region 
of  serious  contention  is  entered  when  we  come  to  consider 
conversion  on  the  high  seas. 

The  question  cannot  be  settled  by  any  clear  deduction 
from  admitted  principles.  On  the  high  seas  states  habitually 
exercise  powers  of  sovereignty  over  their  vessels,  both  public 
and  private,  and  over  the  persons  and  things  within  them. 
And  certainly  the  powers  of  sovereignty  include  the  right 
to  turn  a  merchantman  into  a  man-of-war,  or  a  man-of-war 
into  a  merchantman.  But  they  also  include  the  right  to  set 
up  a  prize  court ;  and  yet  belligerents  are  not  allowed  to  do 
anything  of  the  kind  in  the  cabins  of  their  cruisers.  It  may 
well  be  argued  that  by  parity  of  reasoning  they  cannot  be 
allowed  to  change  the  character  of  their  vessels.  In  answer 
to  this  it  would  be  said  that  the  conversion  of  a  merchant- 
man taken  from  the  enemy  into  a  vessel  of  war,  by  putting 
on  board  an  officer  and  crew  from  the  captor's  complement, 

i  See  §  188. 


530       AGENTS,   INSTRUMENTS,   AND  METHODS   OF    WARFARE 

is  acknowledged  as  lawful,  and  has  been  done  frequently  by 
maritime  belligerents.  Why  then,  it  might  be  asked,  can 
they  not  turn  their  own  merchantmen  into  cruisers  on  the 
open  sea  ?  And  why  may  they  not  go  a  little  further,  and 
send  their  merchantmen  to  sea  in  such  a  condition  that  they 
can  convert  themselves  when  they  come  to  a  convenient 
spot? 

It  is  impossible  to  give  a  decided  answer  to  these  questions 
as  long  as  we  confine  ourselves  to  general  reasoning.  We 
must  base  our  conclusions  on  a  study  of  the  consequences  of 
unrestricted  conversion.  We  shall  find  that  the  advantages 
are  confined  to  belligerents,  and  among  them  to  those  who 
possess  a  considerable  mercantile  marine  and  but  few  ports 
of  their  own  in  distant  parts  of  the  world.  It  would  be  con- 
venient for  them  to  be  able  to  place  their  commerce  destroyers 
in  the  midst  of  a  distant  hunting  ground,  by  sending  them 
to  sea  as  merchantmen,  obtaining  for  them  as  such  the 
hospitality  of  neutral  ports,  and  ordering  them  to  change 
themselves  into  war-ships  when  they  were  safely  established 
on  a  great  trading  route  of  the  enemy.  But  states  with  few 
vessels  capable  of  being  converted,  and  states  with  many 
ports  in  distant  seas,  would  find  the  process  impossible  or 
useless.  The  disadvantages  would  be  felt  by  all  neutrals 
interested  in  sea-borne  commerce,  and  by  all  belligerents 
whose  mercantile  marine  spread  itself  over  a  wide  area  of 
ocean  in  its  trading  operations.  Neutrals  would  be  placed 
in  a  specially  unfavorable  position.  For  not  only  would 
they  find  their  trade  harried  by  vessels  which  were  deemed 
to  be  peaceful  merchantmen  till  they  began  warlike  operations, 
but  they  would  also  be  subject  to  the  complaints  and  threats 
of  belligerents  whose  ships  were  attacked  by  cruisers  which 
just  before  had  received  in  their  ports  facilities  not  accorded 
to  war-ships.  Indeed,  they  themselves  might  suffer  in  this 
way;  for  there  would  be  nothing  to  prevent  a  potential  cruiser 
from  obtaining  a  refit  and  full  supplies  of  coal  in  a  neutral 
port,  and  then  turning  itself  into  a  war-ship  as  soon  as  it  had 


AGENTS,   INSTRUMENTS,   AND  METHODS   OF   WARFARE      531 

passed  out  of  territorial  waters,  and  making  prize  of  a 
vessel  of  the  neutral  whose  hospitality  it  had  just  received. 
However  guilty  the  vessel  in  question  might  turn  out  to  be, 
a  rankling  feeling  of  injustice  could  not  fail  to  arise  over  her 
capture.  Nothing  more  calculated  to  make  difficulties  be- 
tween neutrals  and  belligerents  could  well  be  imagined  than 
the  liberty  of  unrestricted  conversion  that  some  of  the  powers 
contend  for ;  while  the  advantages  to  themselves  would  be 
more  apparent  than  real,  for  a  guerre  de  course  is  rarely 
decisive. 

On  the  other  hand,  Great  Britain  and  her  supporters  are 
inconsistent  when  they  object  to  the  transformation  at  sea  of 
belligerent  merchantmen  into  belligerent  war-ships,  and  at  the 
same  time  desire  to  retain  the  liberty  of  turning  their  prizes 
taken  from  an  enemy  into  war-ships  on  the  spot.  A  state's 
own  merchantmen  and  the  merchantmen  of  its  enemy  should 
be  treated  alike  in  this  connection.  The  principle  of  con- 
vertibility or  the  principle  of  inconvertibility  should  be 
adopted,  but  whichever  is  chosen  should  be  applied  all  round. 
We  have  already  seen  reason  to  lean  to  the  side  of  the  latter, 
and  the  arguments  in  favor  of  it  become  overwhelming 
when  we  reflect  that  conversion  implies  reconversion.  The 
existence  of  a  race  of  maritime  hermaphrodites,  which  can  be 
men-of-war  when  a  capture  is  to  be  made  and  vessels  of 
commerce  when  shelter  and  supply  are  required  in  neutral 
ports,  is  foreign  to  all  ideas  of  honorable  warfare.  Moreover, 
it  would  be  full  of  danger  to  the  peace  and  security  of  neutrals. 
They  are  already  more  than  sufficiently  injured  and  annoyed 
by  the  rights  over  their  commerce  conferred  on  belligerents. 
Why  should  they  be  made  to  bear  a  further  burden  in 
quarrels  that  are  not  their  own?  It  would,  of  course,  be 
possible,  while  allowing  conversion,  to  forbid  reconversion  in 
the  same  war,  as  was  suggested  by  Austria  at  the  Hague  in 
1907.  This,  and  the  Italian  proposal  to  confine  the  right  of 
conversion  to  merchant  ships  that  left  the  territorial  waters 
of  their  own  state  before  the  outbreak  of  hostilities,  might 


532       AGENTS,   INSTRUMENTS,   AND  METHODS   OF   WARFARE 

have  made  a  workable  compromise.  Another  was  suggested 
by  Great  Britain,  when  her  delegates  at  the  Naval  Conference 
of  1908-1909  were  instructed  that  "difficulties  might  be  met 
by  restricting  the  right  of  conversion  on  the  high  seas  to 
the  case  of  vessels  which  had  been  specifically  and  publicly 
designated  by  the  respective  governments  as  suitable  for  the 
purpose  and  borne  on  their  navy  lists ;  and  by  subjecting 
such  vessels,  while  in  neutral  ports,  to  the  same  treatment  as 
belligerent  men-of-war."1  But  no  proposal  was  able  to 
secure  agreement.  We  can  only  hope  that  the  dangers  of 
unrestricted  conversion  on  the  high  seas  will  have  become 
apparent  to  all  the  powers  before  the  next  Hague  Conference 
assembles.2 

§  203 

The   next   subject   demanding   our  attention   is   the  im- 
portant one  of 

Submarine  mines 

Mines  have  been  used  on  land  since  the  invention  of  ex- 
plosives. We  have  more  or  less  obscure  notices  of  some- 
thing resembling  them  at  sea  in  mediaeval  times, 
such  as  the  Greek  fire  and  "  serpents  "  on  board 
the  Saracen  dromond  destroyed  by  Richard  I  off  Beyrout.3 
But  submarine  mines  properly  so  called  were  not  adopted 
as  a  regular  means  of  defence  till  the  American  Civil  War, 
when  the  Southerners  destroyed  some  of  the  blockading 
Northern  ships  by  means  of  them.  Attention  was  thus 
directed  to  them,  as  terribly  efficient  instruments  of  warfare  ; 
and  of  late  years  much  inventive  ingenuity  and  scientific 
knowledge  have  been  applied  to  the  task  of  developing  their 
destructive  qualities.  In  the  Russo-Japanese  War  of  1904- 

1  British  Parliamentary  Papers,  Miscellaneous,  No.  4  (1909),  p.  31. 

2  For  valuable  commentaries  on  the  questions  raised  in  this  section,  see 
Higgins,  The  Hague  Peace   Conferences,  pp.  312-321  ;  and  Scott,  The  Hague 
Peace  Conferences,  vol.  I,  pp.  668-676.    For  a  reasoned  statement  of  the  case 
for  conversion,  see  Dupuis,  Le  Droit  de  la  Guerre  Maritime  d'Apres  les 
Conferences  de  la  Haye  et  de  Londres,  -ch.  III. 

8  Jtinerarium  Ricardi,  bk.  II,  ch.  42. 


AGENTS,    INSTRUMENTS,    AND    METHODS    OF    WARFARE       533 

1905  both  belligerents  used  submarine  mines  on  a  large 
scale,  and  the  results  showed  that  innocent  neutrals  might 
suffer  from  them  to  a  hitherto  unsuspected  extent.  It  was, 
therefore,  highly  desirable  that  the  Hague  Conference  of 
1907  should  regulate  the  use  of  the  new  weapon.  It  toiled 
long  at  the  attempt ;  but  the  result  is  one  of  the  least  satis- 
factory pieces  of  its  work.  In  the  preamble  of  the  Con- 
vention which  dealt  with  the  subject  it  declared  itself 
"  inspired  by  the  principle  of  the  freedom  of  the  seas  as  the 
common  highway  of  all  nations,"  and  set  forth  as  its  aims 
the  mitigation  of  the  severity  of  war  and  the  protection  of 
peaceful  commerce.  But  it  seemed  conscious  of  a  failure 
to  attain  these  exalted  objects;  for  it  spoke  of  the  rules  it 
laid  down  as  provisional,  and  decreed  that  the  contracting 
powers  should  reopen  the  question  in  six  years  and  a  half, 
unless  by  that  time  it  had  been  already  settled  by  a  third 
Hague  Conference.1 

Submarine  mines  are  of  two  distinct  sorts.  The  first  are 
called  observation  mines.  They  are  fired  by  an  operator  on 
shore,  who  touches  a  button  and  frees  an  electric  current 
when  he  sees  an  enemy's  war-ship  in  the  act  of  crossing  the 
mine  field.  They  require  no  special  regulation,  as  they 
are  easily  kept  under  control  and  when  properly  managed 
cannot  harm  neutral  shipping.  But  maritime  states  are  giv- 
ing them  up,  as  being  at  once  expensive  and  incapable  of 
being  worked  at  a  considerable  distance  from  land.  The 
other  kind  are  in  no  way  connected  with  the  shore.  They 
are  described  as  mechanical  mines,  or  automatic  submarine 
contact  mines.  Their  peculiarity  is  that  when  struck  with 
considerable  force  they  explode  through  some  internal 
action.  They  may  be  anchored  to  the  bottom  and  adjusted 

1  Eighth  Hague  Convention  of  1907,  Preamble  and  Articles  11,  12.  The 
text  of  the  Convention  can  be  found  in  Higgins,  The  Hague  Peace  Con- 
ferences, pp.  322-327  ;  Whittuck,  International  Documents,  pp.  161-166  ; 
Scott,  The  Hague  Peace  Conferences,  vol.  II,  pp.  429-437  ;  Supplement  to 
the  American  Journal  of  International  Law,  vol.  II,  Nos.  1  and  2,  pp. 
138-145. 


534       AGENTS,   INSTRUMENTS,   AND  METHODS   OF   WARFARE 

to  any  required  depth  below  the  surface,  or  they  may  be 
dropped  into  the  water  without  fastenings  of  any  kind  and 
allowed  to  drift  wheresoever  the  winds  and  waves  take 
them. 

The  Convention  of  1907  forbids  the  use  of  unanchored 
automatic  contact  mines  "  unless  they  are  so  constructed  as 
to  become  harmless  one  hour  at  most  after  the  person  who 
laid  them  has  ceased  to  control  them."  Anchored  automatic 
contact  mines  are  allowed  when  they  "  become  harmless  as 
soon  as  they  have  broken  loose  from  their  moorings."  In 
addition  the  use  of  torpedoes  is  confined  to  those  that  cease 
to  be  injurious  "when  they  have  missed  their  mark."1 
This  is  the  only  mention  of  these  latter  instruments  in  the 
Convention,  and  we  shall  not  refer  to  them  again,  except  by 
way  of  illustration.  The  Conference  established  no  restric- 
tions as  to  the  places  where  mines  may  be  laid  ;  but  the  com- 
mon law  of  nations  does  in  effect  forbid  belligerents  to  make 
use  of  them  in  neutral  waters,  by  prohibiting  warlike  opera- 
tions therein.  As  things  stand  at  present  the  hostile  parties 
may  strew  them  over  the  high  seas  and  sow  them  broadcast 
in  their  own  territorial  waters  and  those  of  their  foes.  The 
Convention  imposes  but  one  restraint,  and  that  is  illusory. 
It  declares  that  "  the  laying  of  automatic  contact  mines  off 
the  coasts  and  ports  of  the  enemy  with  the  sole  object  of 
intercepting  commercial  shipping  is  forbidden." 2  But  a 
naval  commander  can  always  allege  some  other  object,  and 
by  this  means  secure  unrestricted  liberty  to  close  a  com- 
mercial port  by  mines  laid  secretly  under  cover  of  night  or 
fog.  The  port  would  be  practically  blockaded  by  unseen 
instruments  of  destruction,  and  death  would  be  the  penalty 
of  an  unsuccessful  attempt  to  enter  it.  It  might  well 
happen  that  the  first  victims  were  the  passengers  and  crew 
of  a  neutral  liner  which  was  making  for  the  accustomed 
terminus  of  her  voyage  in  ignorance  that  it  was  no  longer 
open.  Such  a  catastrophe  would  horrify  the  civilized  world. 

1  See  Article  1.  2  See  Article  2. 


AGENTS,    INSTRUMENTS,    AND   METHODS    OF   WARFARE       535 

But  the  authors  of  it  could  claim  that  they  were  within  the 
terms  of  the  Convention,  if  they  were  able  to  show  that  the 
port  contained  a  war-ship,  however  weak  and  antiquated, 
whose  exit  it  was  desirable  to  prevent,  or  that  there  was 
any  danger,  however  remote,  of  the  entry  of  an  enemy 
cruiser.  Thus  a  new  and  horrible  form  of  blockade  might 
be  foisted  into  naval  warfare,  just  at  the  time  when  the  old 
blockade  by  means  of  ships  was  being  placed  under  mild  and 
humane  international  regulations.1 

But  this  case  does  not  stand  alone.  The  Convention 
abounds  with  loopholes.  We  have  seen  that  unanchored 
mines  may  be  used  if  they  become  harmless  within  an  hour 
after  escaping  from  the  control  of  the  person  who  laid  them. 
Does  control  exist  when  a  string  of  mines  is  attached  to  the 
free  end  of  a  tow  rope  several  miles  in  length  ?  If  so,  it 
does  not  mean  power  to  regulate  movement  and  prevent  in- 
jury to  innocent  vessels.  The  simple  requirement  of  harm- 
lessness  within  an  hour  of  being  placed  in  the  water  would 
have  been  much  more  efficacious.  Again,  when  anchored 
mines  cease  to  be  under  observation  the  belligerent  who  laid 
them  must  notify  the  danger  zones  by  means  of  a  warning 
to  mariners  which  must  also  be  communicated  diplomatically 
to  governments  —  an  excellent  rule,  but  deprived  of  nine- 
tenths  of  its  force  by  the  saving  clause  "  as  soon  as  military 
exigencies  will  permit,"  2  which  means  in  effect  after  the 
mines  have  done  their  deadly  work  on  some  one,  whether 
combatant  or  non-combatant,  belligerent  or  neutral,  apparently 
does  not  matter  much.  Worst  of  all  is  the  permission  granted 
inferentially  to  backward  or  careless  powers  to  continue  to  use 
mines  that  are  incapable  of  becoming  harmless  as  soon  as  they 
get  loose  from  their  moorings  or  after  they  have  been  immersed 
for  an  hour.  All  the  Convention  provides  is  that  such  in- 
struments of  death  shall  be  made  to  satisfy  the  prescribed 
conditions  "  as  soon  as  possible."8  This  may  mean  in  some 
cases  indefinite  delay.  The  grant  of  a  fixed  period  for  the 

*  See  part  IV,  ch.  V.  8  See  Article  3.  8  See  Article  6. 


536'      AGENTS,   INSTRUMENTS,    AND   METHODS   OF   WARFARE 

conversion  of  mines  would  have  been  infinitely  preferable, 
if  it  proved  impossible  to  obtain  an  unqualified  prohibition. 
The  Convention  was  passed  at  last  by  a  Conference  utterly 
weary  of  ineffective  attempts  to  deal  with  the  subject ;  and 
it  bears  marks  at  every  turn  of  the  series  of  compromises  that 
gradually  whittled  away  the  strength  of  the  original  pro- 
posals.1 The  human  race  must  make  up  its  mind  whether 
it  is  made  for  war  with  peace  as  an  occasional  breathing- 
space,  or  for  peace  with  war  as  an  unfortunate  interruption 
tolerated  only  because  it  settles  important  questions  that 
cannot  otherwise  be  disposed  of.  If  war  is  paramount,  the 
Convention  may  stand  with  all  its  obvious  sacrifices  of  neu- 
tral safety  to  belligerent  exigencies.  If  not,  drastic  altera- 
tions are  required  in  it,2  as  its  authors  more  than  suspected. 

The  Institute  of  International  Law  has  discussed  the  ques- 
tion three  times  since  the  second  Hague  Conference  sat.  In 
1911  at  Madrid  it  decided  against  the  closure  of  an  enemy's 
ports  by  mines  alone.  In  1908  at  Florence,  and  again  in  1910  at 
Paris,  it  agreed  on  the  prohibition  of  both  anchored  and  drift- 
ing mines  on  the  high  seas.  This  is  the  only  formula  of  safety 
for  neutrals  in  oceanic  voyages.  The  waters  that  are  a  scene 
of  conflict  at  one  moment  are  a  highway  of  peaceful  passage 
the  next.  No  precautions  can  make  sure  that  every  floating 
mine  put  into  the  waves  during  an  engagement  becomes  innoc- 
uous soon  after,  and  no  rules  can  secure  the  universal  observ- 
ance of  precautions  in  the  excitement  of  a  battle.  Anchored 
mines  placed  in  shoal  water  to  protect  a  stationary  fleet  or  block 
a  channel  remain  as  engines  of  death  after  the  fleet  has  departed. 
When  a  particular  use  of  the  high  seas  for  war  renders  them 
dangerous  for  purposes  of  peaceful  intercourse,  and  there  are 
no  outward  indications  of  the  peril  to  warn  off  innocent 
passers-by,  the  warlike  use  should  be  forbidden  in  the  interest 

1  Higgins,  The  Hague  Peace  Conferences,  pp.  328-345. 

2  Article  by  Professor  de  Lapradelle  in  the  Eevue  des  Deux  Mondes,  July, 
1908,  p.  683 ;    Scott,   The  Hague  Peace  Conferences,  vol.  I,  pp.  576-687 ; 
Dupuis,  Le  Droit  de  la  Guerre  Maritime,  pp.  581-596. 


AGENTS,   INSTRUMENTS,   AND  METHODS  OF  WARFARE       537 

of  humanity.  The  territorial  waters  of  belligerents  require 
different  treatment ;  but  combatants  ought  to  be  forbidden 
to  use  in  them  means  of  destruction  that  may  take  effect  out- 
side without  giving  warning  of  their  presence.  This  involves 
the  prohibition  of  unanchored  mines,  since  the  experience  of 
the  Russo-Japanese  War  shows  that  they  may  drift  out  to 
sea  by  hundreds  and  destroy  neutral  life  and  property  at  a 
great  distance  from  the  scene  of  conflict.1  The  loss  of  their 
noxious  properties  after  immersion  for  a  given  time  cannot 
be  guaranteed  in  every  case,  and  if  only  a  few  exploded 
against  the  sides  of  neutral  vessels  the  results  could  be  de- 
plorable. Anchored  mines  can  without  difficulty  be  con- 
structed so  as  to  become  harmless  as  soon  as  they  have  broken 
adrift  from  their  moorings.  But  there  is  no  security  that 
they  will  not  drag  their  anchors  ;  and  the  danger  that  this 
should  happen  unobserved  is  considerable  when  such  mines 
are  laid  along  a  coast-line  which  is  not  constantly  watched 
because  it  is  free  at  the  moment  from  active  operations.  It 
would,  therefore,  be  wise  to  prohibit  the  use  of  anchored  mines 
in  the  territorial  waters  of  the  belligerents,  except  for  the 
attack  and  defence  of  fortified  places,  and  in  such  cases  they 
need  not  be  confined  strictly  to  territorial  waters,  but  might 
be  allowed  within  the  zone  of  active  operations.  The  presence 
of  the  opposing  forces  would  constitute  ample  warning  to 
neutral  vessels.  Any  of  them  that  approached  the  lines  of 
the  combatants  would  do  so  at  their  peril,  just  as  much  as  if 
they  attempted  to  steam  between  the  squadrons  of  a  fleet  in 
action. 

If  the  prohibitions  just  suggested  were  adopted,  the  ques- 
tion of  the  use  of  mines  in  blockades  would  be  incidentally 
solved.  Ordinary  commercial  blockades  would  be  confined, 
as  before,  to  ships;  but  in  strategic  blockades,  when  the  re- 
duction of  the  place  blockaded  was  the  ultimate  object  of  the 
blockaders,  anchored  mines  would  be  allowed  within  the  zone 

1  Lawrence,  International  Problems  and  Hague  Conferences,  p.  176;  La 
Deuxieme  Conference  Internationale  de  la  Paix,  vol.  Ill,  p.  663. 


538       AGENTS,   INSTRUMENTS,    AND   METHODS   OP   WARFARE 

of  action  of  the  blockading  force.  The  case  of  narrow  straits 
connecting  two  open  seas  remains  to  be  considered.  On  the 
general  principle  of  freedom  of  navigation  for  peaceful  vessels, 
no  mines  should  be  allowed  in  them,  even  when  all  their 
waters  are  territorial,  for  none  could  be  laid  without  the  most 
imminent  danger  to  passing  craft.  On  the  other  hand,  it 
seems  impossible  to  forbid  a  belligerent  to  defend  with  an- 
chored mines  an  important  port  situated,  like  Constantinople, 
on  the  shore  of  one  of  these  straits.  Perhaps  it  would  be 
best  to  leave  such  places  to  the  operation  of  the  suggested 
rule  which  allows  the  use  of  anchored  mines  in  the  attack 
and  defence  of  fortified  coast  towns,  but  to  prohibit  any 
further  use  of  mines  in  the  straits  in  question. 

It  is  highly  desirable  that  neutrals  should  be  forbidden  to 
block  with  mines  the  straits  under  their  control  which  are 
passages  between  open  seas.  But  should  the  prohibition 
apply  to  all  neutral  waters  ?  The  Convention  of  1907  an- 
swers the  question  in  the  negative,  stipulating  only  for  the 
precautions  imposed  on  belligerents  and  for  previous  notice 
to  mariners  of  the  places  where  the  mines  have  been  laid.1 
It  would  be  much  simpler  to  declare  them  illegal  in  every 
case.  The  smaller  states  regard  them  as  a  cheap  defence 
against  possible  aggression  from  a  strong  and  unscrupulous 
belligerent.  But  their  safety  and  independence  really  rest 
on  moral  considerations,  and  not  on  force.  Against  casual 
violations  of  their  neutrality  by  subordinate  commanders, 
torpedoes  and  submarines  would  be  a  more  efficient  protec- 
tion than  mines,  and  not  vastly  more  expensive  when  the 
cost  of  possible  compensations  comes  to  be  reckoned.  Neu- 
trals would  lose  little  or  nothing  in  the  way  of  material 
security  if  they  were  denied  the  rigjit  to  use  mechanical 
mines  in  their  ports  and  waters,  while  the  cause  of  humanity, 
which  is  a  direct  interest  of  all  states,  would  gain  much. 

The  process  of  reasoning  we  have  just  been  through  would 
give  us  a  very  simple  set  of  regulations.  They  may  be 

*  See  Article  4. 


AGENTS,   INSTRUMENTS,    AND   METHODS   OF   WARFARE      539 

summed  up  in  a  sentence.  No  mines  of  any  kind  on  the  high 
seas,  except  when  active  operations  against  a  fortified  port 
extend  beyond  marginal  waters ;  no  drifting  mines  any- 
where ;  no  anchored  mines  except  in  attack  or  defence  of  a 
stronghold  situated  on  the  shore,  and  then  all  such  mines  to 
be  so  made  as  to  become  harmless  the  moment  they  break 
adrift.  But  these  rules  must  be  held  to  apply  to  existing 
circumstances  only.  If,  as  does  not  seem  altogether  improb- 
able, mines  are  rendered  dirigible  from  a  distance  by  invisible 
and  impalpable  forces,  they  will  no  longer  be  indiscriminate 
in  their  action,  but  will  have  become  projectiles  directed  by 
the  will  of  man.  In  that  case  the  only  rule  required  for 
them  will  be  that  which  is  already  in  force  as  regards  tor- 
pedoes. They  must  become  harmless  when  they  have  missed 
their  mark. 

§204 

We  must  now  bring  to  an  end  the  consideration  of  sub- 
marine mines,  and  concentrate  our  attention  on 

Bombardments. 

They  have  been  referred  to  briefly  before  in  connection  with 
armies.1  Here  we  must  speak  of  them  at  greater  length 
with  reference  first  to  war  on  land  and  after- 

Bombardments. 

wards  to  war  at  sea.  As  artillery  developed 
while  the  world  grew  less  barbarous,  the  terrible  sufferings 
caused  to  non-combatants,  and  especially  to  women  and  chil- 
dren, by  a  rain  of  explosive  shells  rendered  humane  com- 
manders averse  to  this  means  of  destruction  except  against 
fortifications  or  troops.  But  all  commanders  were  not  hu- 
mane; and  it  was  felt  that,  instead  of  leaving  individuals 
free  to  act  as  they  pleased,  the  laws  of  war  should  impose 
restraints  which  could  not  be  disregarded  without  certain 
dishonor  and  possible  punishment.  The  Brussels  Conference 
of  1874  laid  down  in  its  draft  regulations  that  "towns,  agglom- 

i  See  §  168. 


540      AGENTS,   INSTRUMENTS,   AND  METHODS  OF  WARFARE 

erations  of  houses  or  villages,  which  are  open  and  undefended, 
cannot  be  attacked  or  bombarded."  It  permitted  bombard- 
ment when  they  were  defended,  but  laid  on  the  hostile 
commander  the  duty  of  warning  the  authorities  of  the  place 
beforehand,  unless  he  contemplated  an  assault.  The  besieged 
were  to  indicate  by  special  signs  the  "buildings  devoted  to  re- 
ligion, arts,  sciences,  and  charity,  hospitals,  and  places  where 
sick  and  wounded  are  collected,"  and  when  this  was  done  they 
were  to  be  spared  as  far  as  possible,  on  condition  that  they 
were  not  used  for  military  purposes.1  These  rules  were 
adopted  by  the  Hague  Conference  of  1899,  and  made  part  of 
its  Regulations  concerning  the  Laws  and  Customs  of  War  on 
Land.2  The  Conference  of  1907  introduced  the  phrase  "by 
any  means  whatever "  into  the  clause  prohibiting  the  bom- 
bardment of  undefended  habitations,  for  the  express  purpose 
of  preventing  the  discharge  of  projectiles  from  balloons  on 
open  towns  and  hamlets.  It  also  added  historic  monuments 
to  the  list  of  things  against  which  artillery  is  not  to  be 
directed.  In  their  final  form  these  Articles  are  now  part  of 
the  war  law  of  the  civilized  world.3  Practice  has  sometimes 
gone  beyond  them  in  recent  years.  In  1899  the  Boer  Gen- 
eral, Joubert,  agreed  not  to  fire  on  the  Intombi  Camp,  a 
place  at  a  little  distance  from  besieged  Ladysmith,  but 
within  the  perimeter  of  the  defending  lines.  Thither  the 
sick  and  wounded  were  sent,  and  also  women  and  children. 
They  helped  to  consume  the  stores  of  the  town,  but  were 
safe  from  the  shells  of  the  investing  forces.4  Sometimes 
non-combatants  have  been  allowed  to  pass  through  the  lines 
of  the  besiegers  ;  but  usage  is  not  uniform,  and  therefore  no 
rule  can  be  founded  on  it.  The  Germans,  for  instance,  in 

1  British  Parliamentary  Papers,  Miscellaneous,  No.  1  (1875),  p.  321. 

2  See  Articles  25-27. 

3  Higgins,  The  Hague  Peace  Conferences,  pp.  237,  270  ;  Whittuck,  Inter- 
national Documents,  pp.  136,  136 ;  Scott,  The  Hague  Peace   Conferences, 
vol.  II,  pp.  388-391 ;  Supplement  to  the  American  Journal  of  International 
Law,  vol.  II,  pp.  107,  108. 

*  Conan  Doyle,  The  Great  Boer  War,  ch.  xiii. 


AGENTS,   INSTRUMENTS,   AND   METHODS   OF   WARFARE      541 

their  invasion  of  France  in  1870  both  permitted  and  refused 
departure  according  to  circumstances.  They  allowed  it  at 
Strasburg  which  they  were  determined  to  carry  by  assault, 
if  necessary,  and  they  refused  it  at  Paris  which  they  meant 
to  reduce  by  strict  investment  and  slow  starvation. 

At  the  Hague  Conference  of  1899  no  agreement  was 
reached  on  the  question  of  naval  bombardments.  The 
plenipotentiaries  were  obliged  to  rest  content  with  the  ex- 
pression of  a  wish,  inserted  in  their  Final  Act,  that  the 
matter  should  be  "  referred  to  a  subsequent  Conference  for 
consideration."  l  The  points  at  issue  were  connected  with 
various  barbarous  proposals  to  destroy  the  open  and  unde- 
fended coast  towns  of  the  enemy  by  bombardment  from 
the  sea,  or  extract  enormous  ransoms  by  the  threat  of  it.2 
In  1896  the  Institute  of  International  Law  produced  a 
series  of  excellent  rules  on  the  subject ;  3  and'  the  United 
States  Naval  War  Code  of  1900  summarized  in  a  single 
Article  the  cases  in  which  a  fleet  might  proceed  to  extrem- 
ities.4 Thus  guided,  the  second  Hague  Conference  negoti- 
ated a  Convention  which  reconciles  in  an  admirable  manner 
the  claims  of  humanity  and  the  necessities  of  warfare.6  It 
begins  with  a  definite  prohibition  of  the  bombardment  by 
naval  forces  of  "  undefended  ports,  towns,  villages,  dwell- 
ings, or  buildings."  But  to  this  wholesome  rule  it  permits 
two  exceptions,  irrespective  of  anything  that  might  be  done 
by  way  of  reprisals  for  some  gross  breach  of  the  laws  of  war  on 
the  part  of  the  inhabitants.  If  "  military  works,  military  or 
naval  establishments,  depots  of  arms  or  war  material,  work- 
shops or  plant  which  could  be  utilized  for  the  needs  of  the 

1  Higgins,  The  Hague  Peace  Conferences,  pp.  70,  71. 

2  Holland,  Studies  in  International  Law,  pp.  96-106. 

8  Annuaire  de  Ulnstitut  de  Droit  International,  1896,  pp.  313-315. 

*  See  Article  4. 

5  Higgins,  The  Hague  Peace  Conferences,  pp.  346-357  ;  Whittuck,  Inter- 
national Documents,  pp.  167-172  ;  Scott,  The  Hague  Peace  Conferences, 
vol.  II,  pp.  436-446 ;  Supplement  to  the  American  Journal  of  International 
Law,  vol.  II,  pp.  146-153, 


542       AGENTS,   INSTRUMENTS,   AND   METHODS   OF   WARFARE 

hostile  fleet  or  army "  are  found  in  the  place,  or  ships  of 
war  in  its  harbor,  the  commander  of  the  naval  force  must 
request  the  local  authorities  to  destroy  them  within  a  fixed 
time.  Should  they  fail  to  do  so,  he  may  destroy  them  him- 
self by  means  of  artillery  fire,  "  if  all  other  means  are  im- 
possible." He  may  even  bombard  them  without  notice, 
doing  as  little  damage  as  possible  to  the  town,  if  the  exi- 
gencies of  war  demand  immediate  action ;  but  neither  in 
that  case  nor  in  any  other  may  he  deliberately  lay  his  guns 
on  "  buildings  dedicated  to  public  worship,  art,  science,  or 
charitable  purposes,  historic  monuments,  hospitals,  and  places 
where  the  sick  and  wounded  are  collected,  provided  that 
they  are  not  used  at  the  time  for  military  purposes."  Such 
buildings  or  localities  must  be  indicated  by  "  large,  stiff, 
rectangular  panels,  divided  diagonally  into  two  painted 
triangular  portions,  the  upper  portion  black,  the  lower  portion 
white."  The  second  exception  provides  for  the  case  of  a 
failure  on  the  part  of  the  local  authorities  to  comply  with 
a  demand  for  requisitions.  These  are  restricted  to  "  pro- 
visions or  supplies  necessary  for  the  immediate  use  of  the 
naval  force  before  the  place,"  and  they  must  be  proportioned 
to  its  resources.  Money  payment  should  be  made  for  them, 
or  receipts  given.  Demands  for  them  are  to  be  made  only 
in  the  name  of  the  commander  of  the  naval  force  ;  but  if 
they  are  refused,  the  place  itself  may  be  bombarded.  No 
other  exceptions  are  allowed  in  the  Convention.  Its  fourth 
Article  expressly  forbids  bombardment  of  undefended  coast 
towns  for  the  non-payment  of  money  contributions,  or,  in 
other  words,  ransom.  An  end  is  thus  put,  let  us  hope  for- 
ever, to  the  outrageous  idea  that  modern  laws  of  war 
allow  the  fleets  of  civilized  powers  to  roam  up  and  down  the 
territorial  waters  of  their  enemies,  spreading  death  and 
destruction  inland  as  far  as  their  guns  will  carry.  No 
attempt  was  made  in  the  Convention  to  define  an  unde- 
fended town;  but  it  was  stated  that  a  town  cannot  be 
regarded  as  defended,  and  therefore  subject  to  bombardment, 


AGENTS,   INSTRUMENTS,   AND   METHODS  OF    WARFARE      543 

"  solely  because  automatic  submarine  mines  are  anchored 
off  the  harbor."  Great  Britain,  Germany,  France,  Japan, 
Spain,  and  China  made  reservations  against  this  regulation. 
Mines  are  not  only  a  defence,  but  a  defence  that  is  danger- 
ous to  peaceful  vessels  as  well  as  hostile  squadrons.  That 
the  Conference  actually  encouraged  the  laying  of  them  as  if 
they  were  innocuous  is  a  proof  of  its  obsession  by  the 
subject.  The  rule  it  laid  down  cannot  stand,  with  nearly 
all  the  great  naval  powers  unbound  by  it.  The  first  severe 
maritime  struggle  will  demonstrate  its  futility. 

§  205 

There  is  an  obvious  connection  between  the  subject  of 
bombardments  and  that  of 

Projectiles. 

When  once  it  was  generally  admitted  that  the  limit  of  a 
belligerent's  moral  right  to  inflict  pain  and  injury  was  reached 
when  he  had  destroyed  his  adversary's  power  of  resistance, 
applications  of  this  principle  to  the  kind  of  pro- 

r  L  .  Projectiles. 

jectiles  he  might  fire  from  his  guns  were  certain  to 
be  made.  Even  before  civilized  states  had  practically  agreed 
that  the  only  legitimate  object  of  warlike  operations  is  to 
weaken  the  forces  of  the  enemy  and  induce  him  to  sue  for 
terms,  they  began  to  object  to  certain  means  of  destruction. 
Sometimes  the  ground  of  objection  was  their  newness,  some- 
times their  secrecy,  and  sometimes  the  vastness  or  cruelty  of 
their  destructive  force.  In  one  age  the  cross-bow  was  an- 
athematized, in  another  the  arquebus,  in  a  third  the  bayonet.1 
There  was  a  long  controversy  about  red-hot  shot  till  the  in- 
vention of  rifled  cannon  rendered  it  obsolete.  In  the  eigh- 
teenth and  nineteenth  centuries  a  customary  rule  against  the 
use  of  what  was  technically  called  "  langridge  "  grew  up.  The 
term  includes  nails,  buttons,  bits  of  glass,  knife-blades,  and 
1  Maine,  International  Law,  Lect.  VII. 


544       AGENTS,    INSTRUMENTS,   AND   METHODS   OF   WARFARE 

any  kind  of  rubbish  that  can  be  fired  out  of  a  gun.  Such 
missiles  inflicted  jagged  wounds  without  being  one  whit  more 
effective  than  bullets  in  preventing  combatants  from  continu- 
ing the  fight.  Objections  to  them  were  doubtless  based  largely 
on  sentiment  and  considerations  of  military  honor  ;  but 
there  was  also  a  more  or  less  conscious  application  of  the 
true  principle,  which  measures  the  illegality  of  weapons,  not 
by  their  destructiveness,  but  by  the  amount  of  unnecessary 
suffering  they  inflict.  Fighting  men  may  be  wounded  or 
slain  in  wholesale  fashion,  but  they  may  not  be  tortured. 
The  use  of  torpedoes,  for  instance,  is  perfectly  lawful,  though 
they  may  hurl  a  whole  ship's  crew  into  eternity  without  a 
moment's  warning  ;  but  the  deliberate  insertion  of  a  drop  of 
sulphuric  acid  into  the  head  of  a  bullet,  from  which  it  would 
exude  on  contact  with  human  flesh,  would  be  execrated  as  a 
gross  violation  of  the  laws  of  civilized  warfare.  No  objection 
was  made  to  the  revival  of  hand  grenades  in  the  Russo-Japan- 
ese War  ;  but  when  expanding  bullets  were  resorted  to  on 
a  few  occasions  in  the  South  African  War,  Britain  and  Boer 
accused  each  other  of  callous  illegality. 

The  first  appearance  of  rules  founded  on  this  principle  in 
law-making  international  documents  dates  from  1868,  when 
a  large  number  of  powers  sent  delegates  to  a  Military  Com- 
mission at  St.  Petersburg,  the  result  of  which  was  a  Declara- 
tion prohibiting  the  use  of  explosive  projectiles  weighing  less 
than  fourteen  ounces.1  It  has  been  signed  by  many  powers, 
and  was  incorporated  by  reference  in  the  Hague  Code  for  land 
warfare,  when  the  twenty-third  Article  added  "  the  prohibi- 
tions provided  by  special  conventions  "  to  a  number  of  others 
expressly  mentioned  and  described.  Its  object  was  to  prevent 
the  introduction  of  explosive  bullets  that  might  shatter  an 
arm  or  a  leg,  without  ruling  out  ordinary  shells  which  burst 
on  falling  and  scatter  a  shower  of  missiles.  The  Brussels 
Conference  of  1874  repeated  this  prohibition  in  the  thirteenth 
Article  of  its  regulations,  and. also  forbade  in  general  terms 
1  Higgins,  The  Hague  Peace  Conferences,  pp.  6,  7, 


AGENTS,   INSTRUMENTS,    AND   METHODS   OF   WARFARE      545 

"  the  use  of  arms,  projectiles,  or  substances  which  may  cause 
unnecessary  suffering."  l  The  Hague  Rtylement  concerning 
land  warfare  lays  down  the  same  rule  in  almost  the  same 
words.2  The  three  Declarations  inserted  in  the  Final  Act  of 
the  first  Peace  Conference  made  an  attempt  to  apply  the 
principle,  and  extended  it  in  the  process.  The  first  bound 
the  contracting  parties  to  prohibit  for  five  years  "  the  dis- 
charge of  projectiles  and  explosives  from  balloons,  or  by  other 
similar  new  methods."  The  second  forbade  "  the  use  of  pro- 
jectiles, the  only  object  of  which  is  the  diffusion  of  asphyxiat- 
ing or  deleterious  gases."  The  third  provided  for  abstention 
from  "  the  use  of  bullets  which  expand  or  flatten  easily  in  the 
human  body."  Great  Britain  refused  to  sign  the  first  of 
these  Declarations  in  1899,  but  accepted  it  in  1907,  when  it 
was  reenacted  till  the  end  of  the  next  Conference.  But  on 
that  occasion  Germany,  France,  Italy,  Japan,  and  Russia 
would  not  bind  themselves  by  it,  and  several  less  important 
military  powers  followed  their  example.3  It  seems  as  if  the 
attempt  to  rule  out  of  civilized  warfare  bombardment  from 
balloons  or  aeroplanes  was  doomed  to  failure.  And  certainly 
it  would  be  difficult  to  show  that  the  launching  of  projectiles 
in  such  a  manner  was  contrary  to  the  principle  that  no  un- 
necessary suffering  should  be  inflicted,  always  supposing  that 
the  aerial '  artillerymen  attacked  no  open  and  undefended 
place,  and  avoided  in  their  discharges  the  buildings  and  lo- 
calities exempted  by  the  modern  rules  of  war.  The  second 
Declaration  was  subject  to  no  time  limit,  and  therefore  still 
holds  good.  Yet  it  is  not  easy  to  see  how  quick  asphyxiation 
exceeds  in  cruelty  the  blowing  of  a  human  body  to  pieces  by 
the  bursting  of  a  shell.  Slow  torture  by  chemical  methods 
might  well  be  forbidden  ;  but  immediate  death  after  inhaling 
deleterious  fumes  is  comparable  to  drowning,  which  is  often 
the  fate  of  seamen  in  a  naval  engagement.  The  third  Dec- 

1  British  Parliamentary  Papers,  Miscellaneous,  No.  1  (1875),  p.  321. 

2  See  Article  23  (e). 

8  Higgins,  The  Hague  Peace  Conferences,  pp.  484-i97. 


546       AGENTS,   INSTRUMENTS,   AND   METHODS   OF   WARFARE 

laration,  like  the  second,  was  passed  without  a  clause  pro- 
viding for  its  expiry  after  a  fixed  period  of  years.  Great 
Britain  and  the  United  States  declined  to  sign  it  in  1899,  but 
the  former  gave  in  her  adhesion  in  1907.  It  conies  clearly 
within  the  fundamental  principle  we  have  seen  reason  to 
enunciate  ;  for  a  bullet  which  by  expanding  or  exploding 
shatters  a  limb  to  pieces  tortures  the  man  it  hits,  but  does 
not  render  him  more  incapable  of  continuing  the  fight  than 
he  would  have  been  if  shot  by  a  bullet  that  inflicts  a  clean 
wound.  The  hesitation  of  Great  Britain,  and  the  continued 
refusal  of  the  United  States  to  sign,  were  due  to  the  same 
cause.  Both  countries  drew  a  distinction  between  explosive 
and  expanding  bullets,  and  maintained  that  the  latter  did  not 
inflict  unnecessary  cruelty,  especially  in  warfare  with  wild 
tribes  whose  rushes  it  was  necessary  to  stop.  The  United 
States,  acting  on  the  view  that  the  Declaration  as  adopted  by 
the  Conference  did  not  include  several  kinds  of  bullets  which 
cause  needless  laceration  of  tissues,  suggested  a  formula  which 
would  have  forbidden  "every  kind  of  bullet  which  exceeds 
the  limit  necessary  for  placing  a  man  immediately  hors  de  com- 
bat" but  discussion  of  it  was  ruled  out  on  points  of  order.1 
The  adhesion  of  Great  Britain  and  Portugal  in  1907  leaves 
the  United  States  in  the  position  of  being  the  only  member 
of  the  first  Hague  Conference  that  is  not  bound  by  the  Dec- 
laration. The  signatures  of  the  Latin-American  States  which 
attended  the  second  Conference,  but  not  the  first,  are  also 
wanting.  The  result  is  that  bullets  of  a  kind  forbidden  in 
Europe  can  be  used  in  warfare  between  American  powers. 
In  matters  such  as  these  it  is  highly  desirable  that  civilization 
should  speak  with  no  uncertain  voice ;  and  we  may  hope 
that  the  third  Hague  Conference  will  find  means  of  bringing 
about  the  necessary  unanimity. 

The  attempts  which  have  been  made  to  forbid  the  introduc- 
tion of  new  inventions  into  warfare,  or  prevent  the  use  of 

1  Scott,  The  Hague  Peace  Conferences,  vol.  I,  p.  62,  note  ;  Article  by  Gen- 
eral Davis  in  American  Journal  of  International  Law,  vol.  II,  pp.  76-77. 


AGENTS,   INSTRUMENTS,   AND   METHODS   OF   WARFARE      547 

instruments  that  cause  destruction  on  a  large  scale,  are  doomed 
to  failure.  Man  always  has  improved  his  weapons,  and  al- 
ways will  as  long  as  he  has  need  for  them  at  all.  But  we  can 
hope  for  a  general  recognition  of  the  inutility  as  well  as  the 
cruelty  of  adding  torture  to  disablement.  Suffering  there 
must  be,  as  long  as  there  is  war.  But  unnecessary  suffering 
ought  to  be,  and  can  be,  abolished. 

§  206 

The  next  subject  to  be  discussed  in  connection  with  the 
instruments  and  methods  of  warfare  is 

Devastation. 

The  savage  customs  of  ancient  warfare  allowed  unlimited 
destruction  in  an  enemy's  territory.  We  have  already  seen 
how  in  comparatively  recent  times  better  prac- 

r  *  Devastation. 

tices  were  gradually  introduced,1  till  now  an 
invader,  instead  of  being  free  to  destroy  a  country,  finds 
himself  charged  with  the  duty  of  protecting  property  and 
industry  within  it.  Grotius  endeavored  to  restrict  the  old 
right  of  unlimited  destruction  by  laying  down  that  only 
"such  ravage  is  tolerable  as  in  a  short  time  reduces  the 
enemy  to  seek  peace,"  2  and  even  this  he  endeavored  to  sur- 
round with  all  sorts  of  limitations.  The  publicists  of  the 
eighteenth  century  followed  in  his  footsteps,  and  their  suc- 
cessors have  gone  steadily  forward  in  the  same  direction. 
Vattel,  for  instance,  says  that  the  utter  destruction  of  a  hostile 
territory  is  authorized  and  excused  in  two  cases  only.  The 
first  is  when  there  exists  a  "  necessity  for  chastising  an  un- 
just and  barbarous  nation,  for  checking  its  brutality  and  pre- 
serving ourselves  from  its  depredations,"  and  the  second 
exists  when  there  is  evident  need  "  for  making  a  barrier  for 
covering  a  frontier  against  an  enemy  who  cannot  be  stopped 

1  See  §§  176-179.  2  De  Jure  Belli  ac  Pads,  bk.  Ill,  ch.  xn. 


548       AGENTS,   INSTRUMENTS,   AND   METHODS   OF  WARFARE 

in  any  other  way."1  In  discussing  the  question  he  practi- 
cally adds  as  a  third  case  the  destruction  that  may  be  re- 
quired in  order  to  carry  on  field  operations  or  the  works  of  a 
siege.  There  can  be  no  doubt  about  this  last  instance.  The 
laws  of  war  allow  the  suburbs  of  a  town  to  be  destroyed  in 
order  to  keep  the  besiegers  from  effecting  a  lodgment  in 
them,  or  afford  free  scope  to  the  action  of  defending  artillery. 
Buildings  may  be  demolished  and  trees  cut  down  to  strengthen 
a  position,  and  even  villages  burnt  to  cover  a  retreat.  But 
such  devastation  must  be  absolutely  necessary  for  the  attain- 
ment of  some  direct  and  immediate  military  end.  It  is  not 
enough  that  there  should  be  merely  a  vague  expectation  of 
future  advantage  to  accrue  from  the  act. 

In  warfare  with  barbarous  or  semi-barbarous  races,  the  first 
exception  allowed  by  Vattel  is  often  acted  on,  especially  when 
punitive  expeditions  are  sent  to  chastise  savages  for  outrages 
of  which  they  have  been  guilty.  When  the  punishment  is 
made  to  fall  on  the  real  offenders,  whether  tribes  or  individ- 
uals, and  the  measures  taken  are  unstained  by  brutality  or 
license,  these  operations  may  prevent  similar  outrages  in 
future,  and  thus  conduce  to  the  welfare  of  mankind.  But 
the  greatest  care  should  be  shown  in  conducting  them.  Con- 
sidered as  agents  of  avenging  justice,  shells  often  show  a  pain- 
ful lack  of  discrimination.  They  are  apt  to  destroy  the  inno- 
cent as  well  as  the  guilty. 

Vattel's  second  exception  is  allowed  no  longer.  A  bel- 
ligerent who  devastated  his  enemy's  territory  in  order  to 
make  a  barrier  and  cover  his  own  frontier,  would  now  be 
held  up  to  the  execration  of  the  civilized  world.  The  ravaging 
of  the  Palatinate  in  1689  was  justified  by  the  French  Gov- 
ernment on  this  ground ;  but,  as  Vattel  himself  says  with 
regard  to  it,  "All  Europe  resounded  with  invectives  and 
reproaches. "  We  have  advanced  a  long  way  in  the  direction 
of  humanity  towards  foes  since  that  time,  and  what  was  de- 
nounced then  would  not  be  tolerated  now. 

i  Droit  des  Gens,  bk.  in,  §§  167, 168. 


AGENTS,   INSTRUMENTS,   AND   METHODS   OF   WARFARE      549 

When  we  turn  to  modern  law-making  documents  we  find 
that  both  the  Brussels  Conference  and  the  two  Hague  Con- 
ferences laid  down  the  only  general  rule  possible  for  civilized 
states.  Article  twenty-three  of  the  Hague  Reglement  de- 
clares that  it  is  forbidden  "  to  destroy  .  .  .  the  enemy's  prop- 
erty, unless  such  destruction  ...  be  imperatively  demanded 
by  the  necessities  of  war."  It  may  be  taken  for  granted  that 
the  necessities  of  war  include  the  destruction  of  whatever 
property  interferes  with  the  operations  of  a  conflict,  an  ad- 
vance, or  a  retreat.  No  general  would,  if  he  could  help  it, 
allow  a  bridge  to  stand  which  an  enemy  might  cross  to  attack 
his  positions,  or  a  railway  in  his  rear  to  remain  intact  to 
facilitate  the  onward  march  of  his  pursuers.  Nor  would  he 
hesitate  to  blow  up  a  factory,  or  even  a  church,  that  blocked 
the  way  for  his  artillery  up  a  narrow  valley.  Again,  a  naval 
commander,  charged  with  the  duty  of  destroying  a  nest  of 
pirates,  would  not  scruple  to  shell  them  out  of  their  strong- 
hold and  then  land  a  party  to  burn  it.  Moreover,  the  de- 
liberate destruction,  by  fire  or  explosives,  of  buildings  from 
which  shots  were  fired  on  invading  troops  by  non-combatants 
or  unauthorized  combatants,  is  an  act  which  any  officer  who 
cared  for  the  safety  of  his  men  would  feel  bound  to  order. 
None  of  these  things  would  be  accounted  unlawful.  But  how 
far  beyond  them  is  it  legitimate  to  go  ?  The  phrase  "  neces- 
sities of  war "  is  vague  and  elastic,  and  the  interpretation 
given  to  it  in  practice  will  depend  largely  on  the  personal 
character  of  those  who  direct  the  armies.  It  is  clear  that 
the  necessity  must  be  fairly  direct  and  immediate,  else  it 
would  be  possible  to  justify  the  most  atrocious  acts,  such,  for 
instance,  as  the  slaughter  of  unarmed  lads  lest  they  should 
in  future  recruit  the  enemy's  forces.  The  magazines  and 
stores  of  an  enemy  may  certainly  be  given  to  the  flames  ;  but 
may  a  force  marching  through  a  fertile  belt  of  hostile  country 
burn  barns  and  standing  crops,  on  the  plea  that  the  district 
is  the  granary  of  the  enemy  ?  This  was  the  ground  alleged 
in  justification  of  much  of  the  farm-burning  by  the  British 


550       AGENTS,   INSTRUMENTS,   AND   METHODS  OF   WAEFARK 

in  the  later  stages  of  the  Boer  War,  and  of  the  devastation 
of  the  Shenandoah  Valley  by  Sheridan  and  parts  of  Georgia 
and  South  Carolina  by  Sherman  in  the  American  Civil  War. 
It  hardly  seems  sufficient.  If  an  invader  can  occupy  a  dis- 
trict, its  resources  are  his  to  tax  to  the  bone  by  way  of  requi- 
sition as  long  as  he  does  not  reduce  the  inhabitants  to  actual 
starvation.  But  if  he  cannot,  it  may  well  be  doubted  whether 
his  war-right  allows  him  to  send  columns  through  it,  and 
mark  their  track  by  ruin  and  destruction.  The  case  of  a 
semi-guerilla  war,  like  that  of  1901  and  1902  in  South  Africa, 
carried  on  over  vast  tracts  of  sparsely  settled  country,  pre- 
sents special  difficulties,  for  its  military  occupation  in  the 
usual  sense  is  practically  impossible.  The  British  destroyed 
the  farms  over  wide  districts,  removing  the  non-combatant 
inhabitants  and  caring  for  them  in  concentration  camps. 
This  device,  so  humane  in  conception  and  so  costly  of  infant 
life  in  effect,  gave  rise  to  an  enormous  amount  of  heated  con- 
troversy. It  is  much  to  .be  wished  that  civilized  mankind 
could  agree  to  define  the  emergencies  on  which  it  is  lawful 
to  devastate,  instead  of  leaving  the  matter  in  its  present  in- 
determinate condition.  The  experience  of  the  British  in  the 
South  African  War,  when  the  Boer  commanders  supplied 
themselves  from  Kaffir  kraals  and  captured  convoys,  shows 
that  devastation  may  be  as  useless  as  it  is  unmerciful  ;  and  in 
such  cases  even  the  costly  expedient  of  feeding  the  dispos- 
sessed inhabitants  ought  not  to  be  held  to  justify  the  destruc- 
tion of  their  dwellings  and  property.1 

A  broad  distinction  must  be  drawn  between  devastation  by 
an  enemy  and  devastation  by  a  population  to  repel  an  enemy. 
If  a  nation  is  willing  to  consign  to  destruction  its  own  homes 
and  possessions  in  order  to  stop  the  advance  of  invaders  or 
weaken  them  by  cutting  off  sources  of  supply,  International 
Law  in  no  way  forbids  such  a  piece  of  heroic  self-sacrifice. 
History  has  nothing  but  praise  for  the  Dutch  who  in  the 
war  of  independence  cut  their  dykes,  and  let  in  the  sea  as  a 
1  Times  History  of  the  War  in  South  Africa,  vol.  V,  p.  264. 


AGENTS,    INSTRUMENTS,    AND   METHODS   OF   WARFARE      551 

defence  against  the  Spaniards.  And  similarly,  the  action  of 
the  inhabitants  of  Moscow,  who  left  their  city  and  allowed  it 
to  be  given  to  the  flames  in  order  that  it  might  not  be  used 
as  winter  quarters  by  Napoleon's  army,  has  always  been  re- 
garded as  a  splendid  example  of  patriotic  devotion. 

§  207 
We  must  now  consider  the  question  of  the  use  in  war  of 

Stratagems. 

They  are  ruses  practiced  on  the  enemy  in  order  to  mislead 
him  and  put  him  off  his  guard.  That  they  may  be  used  at 
all  is  due  to  the  fact  that  war  is  a  conflict  of 

....  ,  ,,.    ,        „  T       Stratagems. 

wits  quite  as  much  as  a  conflict  or  arms.  In 
ordinary  peaceful  intercourse  men  are  expected  to  avoid  de- 
ceits, though  in  certain  games  feints  of  a  particular  kind  are 
allowed  by  the  rules ;  and  he  who  breaks  the  general  undertak- 
ing is  a  moral  wrong-doer,  and  often  a  legal  offender  also.  In 
war  things  are  reversed.  The  general  undertaking  is  confined 
to  comparatively  few  matters.  It  is  as  immoral  to  violate 
these  conventions  as  it  would  be  to  lie  and  cheat  in  ordinary 
society.  But  outside  them,  every  kind  of  misleading  device  is 
legitimate,  and  the  most  honorable  of  commanders  constantly 
resort  to  them.  Some  branches  of  the  general  undertaking 
between  belligerents  are  now  defined  and  regulated  by  special 
agreements,  while  others  derive  their  force  from  usage  only. 
Chapter  III  of  the  Hague  Code  for  war  on  land  deals  with 
flags  of  truce ; 1  the  Geneva  Convention  prescribes  the  red 
cross  on  a  white  ground  as  the  badge  that  exempts  the  per- 
sonnel and  material  of  the  hospital  and  ambulance  service 
from  hostile  attack;2  the  ninth  Hague  Convention  of  1907 
introduces  a  new  sign  to  be  hoisted  over  buildings  entitled 
to  be  spared  in  bombardments  by  naval  forces,3  arid  the  tenth 
Hague  Convention  of  1907  sets  forth  the  marks  whereby 

*  See  §  211.  a  See  §  165,  •  See  §  204, 


552 

military  hospital  ships  are  to  be  known,  and  the  presence  of 
which  gives  them  protection.1  In  all  these  cases  the  signatory 
powers  would  be  dishonoring  their  own  signatures  as  well 
as  violating  a  wholesome  and  humane  rule,  if  they  either  fired 
on  the  signs  when  properly  used,  or  used  them  for  other  pur- 
poses than  those  which  they  indicate.  Any  stratagem  that 
involved  such  action  would  be  grossly  illegal,  and  might  sub- 
ject its  authors  to  severe  reprisals  from  the  enemy  and  pun- 
ishment from  their  official  superiors. 

Questions  connected  with  uniforms  and  flags  rest  almost 
entirely  on  usage,  and  are,  therefore,  sometimes  doubtful, 
since  practice  is  by  no  means  consistent,  and  great  authorities 
differ  on  important  points.  The  only  reference  to  them  in 
law-making  international  documents  is  contained  in  the 
twenty-third  Article  of  the  Hague  Reglement,  which  in  its  list 
of  things  forbidden  to  belligerents  includes  "  improper  use 
of  ...  the  national  flag,  or  of  the  military  insignia  and  uni- 
form of  the  enemy."  No  attempt  was  made  to  define  im- 
proper use,  and  we  are  therefore  thrown  back  on  custom 
and  its  interpreters.  All  are  agreed  that  troops  engaged  in 
actual  conflict  must  not  wear  the  uniform  or  carry  the  en- 
signs of  the  enemy.  Bat  may  they  do  these  things  in  order 
to  secure  an  unmolested  advance  to  the  attack,  if  they  don  a 
distinguishing  badge  at  the  moment  when  the  conflict  begins  ? 
There  is  a  school  of  writers  who  see  no  harm  in  such  con- 
duct.2 But  another  and  on  the  whole  more  modern  school 
denounce  it,3  and  with  good  reason.  A  national  uniform  is 
a  well-known  sign  that  is  supposed  to  mean  one  and  the 
same  thing  always  and  at  all  times.  Its  use  was  adopted  in 
order  that  belligerents  might  know  friends  from  foes;  and 
so  important  was  knowledge  of  this  fundamental  distinction 
deemed  that  when  states  discussed  the  conditions  on  which 

1  See  §  165. 

2  E.g.  Hall,  International  Law,  6th  ed.,  pp.  538,  539. 

8  E.g.  Bonfils-Fauchille,  Manuel  de  Droit  International  Public,  4th  ed., 
§  1078. 


AGENTS,   INSTRUMENTS,   AND   METHODS   OF   WARFARE       553 

they  would  consent  to  legalize  irregular  combatants  they 
placed  among  them  the  wearing  of  a  distinctive  badge 
recognizable  at  a  distance.1  These  precautions  would  be 
nullified,  if  troops  were  to  creep  up  to  the  enemy's  lines, 
and  even  into  his  encampments,  in  the  guise  of  friends.  In 
the  American  Civil  War  when  the  ill-clad  Southerners,  as 
sometimes  happened,  clothed  themselves  in  military  great- 
coats and  uniforms  from  captured  Northern  depots  or  con- 
voys, they  were  expected  to  place  some  distinguishing  mark 
in  a  conspicuous  position.  In  the  South  African  War  owing 
to  the  absence  of  uniforms  on  the  part  of  the  Boers  at  the 
beginning,  and  the  absence  of  clothing  at  the  end  except 
what  they  took  from  the  British,  the  rule  was  practically 
waived2;  but  the  circumstances  were  so  extraordinary  that 
they  can  hardly  constitute  a  precedent.  Stratagems  that  do 
not  violate  any  express  or  tacit  understanding  -between  bel- 
ligerents are  perfectly  lawful.  Every  general  knows  that 
he  must  guard  against  them  by  his  own  vigilance. 

§  208 
We  have  now  to  deal  with 

Assassination. 

The  life  of  some  one  person  is  often  of  the  last  importance 
to  a  cause,  and  when  that  is  the  case  its  enemies  are  under 
great  temptation  to  get  rid  of  its  champion  by 

„   .,         _      ,        r        .     J     Assassination. 

murder,  if  all  other  means  fail,  buch  assassina- 
tions for  public  purposes  seem  to  have  been  regarded  with 
approval  in  ancient  and  mediaeval  times.  Grotius,  in 
the  course  of  an  elaborate  discussion  of  the  subject,  indi- 
cates the  all-important  point,  which  is  not  the  act  of 
killing,  but  the  presence  or  absence  of  bad  faith  or  treachery 
in  the  surrounding  circumstances.3  Modern  International 

1  Hague  Reglement,  Article  1. 

2  Times  History  of  the  War  in  South  Africa,  vol.  V,  p.  255. 
8  De  Jure  Belli  ac  Pads,  bk.  Ill,  ch.  iv,  18. 


554       AGENTS,   INSTRUMENTS,   AND   METHODS   OF   WARFARE 

Law  distinguishes  between  dashes  made  at  a  ruler  or  com- 
mander by  an  individual  or  a  little  band  of  individuals  who 
come  as  open  enemies,  and  similar  attempts  made  by  those 
who  disguise  their  enemy  character.  A  man  who  steals 
secretly  into  the  opposing  camp  in  the  dark,  and  makes  alone 
or  with  others  a  sudden  attack  in  uniform  upon  the  tent  of 
king  or  general,  is  a  brave  and  devoted  soldier.  A  man  who 
obtains  admission  to  the  same  tent  disguised  as  a  pedler,  and 
stabs  its  occupant  when  lured  into  a  false  security,  is  a  vile 
assassin,  and  the  attempt  to  procure  such  a  murder  is  as 
criminal  as  the  murder  itself.  Article  148  of  the  Instruc- 
tions issued  in  1863  to  the  armies  of  the  United  States  de- 
clares with  perfect  justice  that  "  Civilized  nations  look  with 
horror  upon  offers  of  rewards  for  the  assassination  of  enemies, 
as  relapses  into  barbarism."  J  The  Hague  code  for  war  on 
land  declares  that  it  is  especially  forbidden  "  to  kill  or  wound 
treacherously  individuals  belonging  to  the  hostile  nation  or 
army."2 

§  209 

The  next  and  last  of  the  methods  and  instruments  of  war- 
fare to  be  considered  is 

Poison. 

Savages  use  poisoned  weapons ;  but  civilized  mankind  has 
expelled  them  from  its  warfare,  and  refrains  from  the  poison- 
ing of  food  or  water,  or  the  inoculation  of  the 
enemy  with  disease.  The  secrecy  and  cruelty 
associated  with  death  by  poison,  and  the  danger  that  inno- 
cent people  may  be  made  to  suffer  along  with  or  instead  of 
foes,  will  serve  to  account  for  the  deep-seated  abhorrence 
of  such  a  method  of  destruction.  Grotius  condemns  it  as 
contrary  to  the  sentiment  of  the  best  and  most  advanced 
nations,8  and  the  other  text-writers  agree  with  him.  The 

1  Davis,  Outlines  of  International  Law,  p.  426.  2  See  Article  23  (b). 

8  De  Jure  Belli  ac  Pads,  bk.  Ill,  ch.  iv,  16-17. 


AGENTS,    INSTRUMENTS,    AND    METHODS   OF   WARFARE        555 

Hague  Conference  Reglement  mentions  it  only  to  exclude 
it  from  the  permissible  means  of  injuring  an  enemy.1  But 
the  experience  of  the  Boer  War  seems  to  show  that  the  con- 
tamination of  water  by  the  carcasses  of  animals  is  not  for- 
bidden.2 

1  See  Article  23  (a). 

a  Maurice,  Official  History,  vol.  n,  p.  164. 


CHAPTER  VII 

THE  NON-HOSTILE   INTERCOURSE   OF  BELLIGERENTS 

§210 

DURING  war  a  certain  amount  of  more  or  less  amicable 

intercourse  takes  place  between  the  belligerents.     We  can- 

not call  it  pacific,  because  it  presupposes   the 

The  nature  of  non- 


. 

existence  of  hostilities.  On  the  other  hand, 
it  certainly  is  not  warlike,  for  it  involves  at 
least  the  temporary  cessation  of  active  operations  on  the 
part  of  the  combatants,  or  some  of  them.  We  are  therefore 
obliged  to  characterize  it  as  non-hostile,  an  epithet  which 
has  the  merit  of  expressing  exactly  what  we  mean,  though 
it  is  lacking  in  euphony.  The  amount  of  such  inter- 
course that  takes  place  depends  upon  the  wishes  of  the  bel- 
ligerents, and  therefore  varies  not  only  from  war  to  war,  but 
also  in  different  periods  of  the  same  war  and  in  different 
parts  of  the  same  theatre  of  hostilities.  It  is  divided  into 
several  kinds,  the  chief  of  which  we  will  consider  in  due 
order.  It  is  impossible  to  give  all  because  they  are  so  nu- 
merous and  so  frequently  modified  by  the  incessant  changes  of 
warfare.  Such  phrases  as  "licenses  to  reside,"  "grants  of 
asylum,"  and  others  of  a  like  kind,  carry  with  them  their 
own  explanation.  Moreover,  the  things  they  signify  are 
hardly  important  enough  to  be  placed  in  a  class  by  them- 
selves. 

556 


THE  NON-HOSTILE   INTERCOURSE  OF   BELLIGERENTS     557 

§211 

The  first  of  the  commercia  belli  with  which  we  have  to  do 
are 

Flags  of  truce. 

These  are  white  flags  used  by  one  side  as  a  signal  that  it 
desires  a  parley  with  the  other,  or  as  a  sign  of  surrender. 
The  Hague  code  for  war  on  land  declares  that 
"a  person  is  considered  as  the  bearer  of  a  flag 
of  truce  who  has  been  authorized  by  one  of  the  belligerents 
to  enter  into  communication  with  the  other  and  who  presents 
himself  with  a  white  flag."  It  adds  that  he  may  be  ac- 
companied by  a  trumpeter,  a  bugler,  or  drummer,  a  flag 
bearer,  and  an  interpreter.  The  party  enjoys  "  the  right  of 
inviolability,"  that  is  to  say,  its  members  may  not  be  sub- 
jected to  personal  injury  or  detained  as  prisoners.1  It  goes 
without  saying  that  the  bearer  of  a  flag  of  truce  is  entitled 
to  this  immunity  if  he  comes  without  attendants.  But  the 
obligation  to  refrain  from  molestation  is  not  absolute.  In 
the  first  place,  the  commander  to  whom  a  flag  of  truce  is  sent 
is  not  bound  to  receive  it.  Custom  prescribes  that  he 
must  notify  his  refusal,  and  gives  him  the  right  to  fire  on  the 
flag  party  if  they  continue  to  advance  in  spite  of  his  notifica- 
tion. Further,  in  cases  where  there  is  no  question  of  exclu- 
sion, the  emissary  or  emissaries  may  be  blindfolded,  and  they 
are  held  bound  in  honor  not  to  take  advantage  of  their 
position  for  the  purpose  of  obtaining  military  information, 
whether  or  no  physical  means  are  used  to  hinder  them.  If 
important  movements  are  on  foot,  and  it  is  impossible  that 
they  should  have  failed  to  acquire  some  knowledge  of  them 
by  the  evidence  of  their  own  senses,  they  may  be  kept  in 
honorable  detention  for  a  little  while,  till  the  operations  are 
over,  or  till  it  is  no  longer  necessary  to  keep  them  secret.2 

1  See  Beglement,  Article  32. 
3  See  Beglement,  Article  33. 


558     THE  NON-HOSTILE  INTERCOURSE  OF  BELLIGERENTS 

In  the  second  place,  anything  approaching  to  treachery  on 
the  part  of  the  bearer  of  a  flag  of  truce  deprives  him  of  his 
personal  inviolability.1  If  he  purchases  plans,  or  incites  sol- 
diers to  desertion,  or  attempts  to  sketch  defences,  he  may  be 
deprived  of  liberty,  or  perhaps,  in  extreme  cases,  executed  as 
a  spy.  These  rules  apply  mutatis  mutandis  to  naval  warfare. 
At  sea  flags  of  truce  are  sent  in  boats,  and  are  met  by  boats 
flying  similar  flags  and  conducted  to  the  ship  on  which  the 
officer  in  command  is  to  be  found. 

When  a  white  flag  is  waved  during  a  battle  or  hoisted 
over  forts  and  besieged  posts,  it  indicates  a  desire  to  sur- 
render, or  at  least  to  parley  with  a  view  to  surrender.  But 
it  must  be  raised  by  order  of  the  officer  in  chief  command  on 
the  spot.  Otherwise  it  binds  only  those  who  raise  it,  and 
they  may  be  fired  on  by  their  fellows  to  prevent  the  consum- 
mation of  their  act,  as  was  the  case  with  regard  to  some 
British  soldiers  in  an  exposed  trench  on  Spion  Kop  during 
the  South  African  War,  and  with  some  Boers  at  Driefontein.2 


§212 
Another  mode  of  intercourse  between  belligerents  is  by 

Cartels, 

which  are  agreements  entered  upon  during  war,  or  in  antici- 
pation of  it,  in  order  to  regulate  some  kinds  of  such  inter- 
course as  is  to  be  allowed  in  the  course  of  the 
struggle.     They  prescribe,  for  instance,  the  for- 
malities to  be  observed  in  the  exchange  of  prisoners,  the  re- 
ception of  flags  of  truce,  and  the  interchange  of  postal  or 
telegraphic  communications.     Whatever  regulations  are  laid 
down  in  them  should  be  observed  in  good  faith,  and  without 
any  attempt  to  wrest  them  from  their  humane  purposes,  and 

1  See  Reglement,  Article  34  ;  Holland,  The  Law  of  War  on  Land,  p.  49. 
3  Times  History  of  the  War  in  South  Africa,  vol.  Ill,  pp.  268,  283,  284. 


THE   NON-HOSTILE   INTERCOURSE   OF   BELLIGERENTS     559 

turn  them  into  means  of  obtaining  information  or  gaming 
military  advantage.  Cartels  for  the  exchange  of  prisoners 
were  frequent  incidents  of  wars  between  civilized  powers, 
and  may  become  frequent  again  in  the  event  of  a  revival  of 
the  custom  of  exchange.  The  arrangements  connected  with 
the  process  were  made  and  supervised  by  officers  called  com- 
missaries, who  were  appointed  by  each  belligerent,  and  al- 
lowed to  reside  in  the  country  of  the  enemy.  Cartel-ships 
were  vessels  employed  in  the  conveyance  of  prisoners  to  and 
from  the  place  of  exchange.  They  were  free  from  hostile 
seizure  on  the  conditions  set  forth  when  we  were  considering 
the  extent  to  which  public  vessels  of  the  enemy  are  liable  to 
capture.1 

§213 

The  next  subjects  to  be  considered  in  connection  with  the 
relaxations  of  the  strict  rule  of  non-intercourse  in  warfare 
may  be  dealt  with  under  the  head  of 

Passports,  safe-conducts,  and  safeguards. 

Passports  are  granted  by  a  belligerent  government,  and  are 
generally   made   to   apply   to   all   territory   in   its    control, 
whether  under  its  sovereignty  or  under  its  military  occupa- 
tion.    They  are  permissions  to  travel  within  such  territory, 
given  to  enemy  subjects  who  have  satisfied  those  in  authority 
that  their  objects  in  making  the  visit  are  innocent.     Safe- 
conducts  are  granted  either  by  a  belligerent  government,  or 
by  its  naval  and  military  officers.     They  apply  pagg  ortg  ^^ 
to  a  particular  place  only,  and  any  commander  conducts,  and 
may  grant  them  in  the  area  under  his  control. 
Both  passports  and  safe-conducts  are  revocable  for  good  rea- 
son ;  but  if  they  are  revoked  the  grantee  should  be  allowed 
to  withdraw  in  safety.     A  limit  of  time  may  be  named  in 
these  instruments,  and  a  special  purpose  may  be  mentioned 
as  the  only  one  for  which  the  permission  is  given.     What- 

i  See  §  181. 


560     THE   NON-HOSTILE   INTERCOURSE   OF    BELLIGERENTS 

ever  conditions  are  imposed  must  be  carefully  complied  with, 
and  both  sides  are  held  to  the  strictest  good  faith.  A  safe- 
conduct  may  be  given  in  respect  of  goods  only,  in  which  case 
it  is  a  permission  to  remove  them  without  restriction  as  to 
the  agent,  but  with  an  implied  condition  that  he  shall  not  be 
dangerous  or  otherwise  obnoxious  to  the  grantor.  It  is  al- 
ways understood  that  neither  passports  nor  safe-conducts  are 
transferable.  Safeguards  are  grants  of  protection  given  to 
enemy  persons  or  enemy  property  by  belligerents,  for  the 
purpose  of  preventing  any  possible  license  on  the  part  of 
their  own  forces.  They  generally  take  the  form  of  a  guard 
of  soldiers,  and  these,  if  not  withdrawn  before  the  place  where 
they  are  stationed  passes  under  the  control  of  the  other  side, 
possess  immunity  from  attack,  and  must  be  properly  cared 
for  and  sent  back  to  their  own  side.  Sometimes  a  written 
guarantee  of  protection  is  called  a  safeguard.1 

§214 

It  sometimes  happens,  especially  in  maritime  hostilities, 
that  a  belligerent  grants 

Licenses  to  trade, 

which  enable  their  holders  to  carry  on  a  commerce  forbidden 

by  the  ordinary  laws  of   war  or  by  the  legislation   of   the 

grantor.      Licenses   are  general   when   a   state 

Licenses  to  trade.         .  .  . 

gives  permission  to  all  its  own  subjects,  or  to 
all  neutral  or  enemy  subjects,  to  trade  in  particular  articles 
or  at  particular  places,  special  when  permission  is  granted  to 
particular  individuals  to  trade  in  the  manner  described  by 
the  words  of  the  documents  they  receive.  Both  kinds  re- 
move all  disabilities  imposed  because  of  the  war  upon  the 
trade  in  respect  of  which  they  are  given.  The  holders  can 
sue  and  be  sued  in  the  courts  of  the  grantor,  and  are  allowed 
to  enter  into  contractual  relations  with  his  subjects  to  the 
extent  necessary  in  order  to  act  on  the  terms  of  the  license. 

1  Bonfils-Fauchille,  Manuel  de  Droit  International  Public,  §  1247. 


THE   NON-HOSTILE  INTERCOURSE  OF   BELLIGERENTS      561 

General  licenses  can  be  granted  only  by  the  supreme  power 
in  the  state.  Special  licenses  generally  emanate  from  the 
same  source ;  but  officers  in  chief  authority  on  land  or  sea 
can  issue  permissions  to  trade  in  the  district  or  with  the 
force  under  their  command.  Such  licenses,  however,  afford 
no  protection  outside  the  limits  of  the  grantor's  control. 
When  the  commander  of  an  invading  force  issues  a  procla- 
mation to  the  people  of  the  country  requesting  them  to  sell 
him  supplies,  he  gives  them  an  implied  license  to  trade  in 
his  camp. 

During  the  revolutionary  and  Napoleonic  struggle  between 
Great  Britain  and  France,  a  very  large  number  of  licenses 
were  granted  by  both  the  belligerents.  Napoleon's  attempt 
to  ruin  England  by  excluding  her  manufactured  goods  and 
colonial  produce  from  the  continent  of  Europe  brought  about 
an  enormous  rise  in  the  price  of  such  commodities  in  all  the 
countries  controlled  by  him.  Licenses  to  trade  were  sold  at 
a  high  price,  and  towards  the  end  of  the  war  many  of  the 
supplies  served  out  to  the  French  troops  came  from  English 
sources.  Great  Britain,  too,  sold  or  gave  licenses ;  and  on 
both  sides  Prize  Courts  were  frequently  employed  in  decid- 
ing questions  connected  with  their  interpretation  or  with 
proceedings  arising  out  of  them.  Owing  to  the  changes  that 
have  taken  place  in  sea  warfare  since  the  peace  of  1815,  much 
of  the  body  of  law  thus  developed  has  but  an  antiquarian 
interest.  We  will,  therefore,  pass  over  details,  and  give 
only  those  parts  of  it  which  may  possibly  be  again  en- 
forced. Misrepresentation  of  facts  is  held  to  annul  a  license, 
and  an  individual  who  has  received  one  by  name  cannot 
transfer  it  to  others,  though  he  may  act  through  an  agent. 
But  if  it  is  made  negotiable  by  express  words,  it  may  be 
transferred  like  any  other  instrument.  Slight  deviations 
from  the  quantity  or  quality  of  the  goods  specified  will  not 
forfeit  the  license,  nor  will  a  slight  alteration  in  the  character 
of  the  vessel ;  but  the  use  of  a  ship  of  one  nationality  when 
another  was  mentioned  will  cause  forfeiture.  Deviation  from 


562      THE  NON-HOSTILE  INTERCOURSE   OF   BELLIGERENTS 

the  specified  course,  or  a  delay  in  arrival  beyond  the  speci- 
fied time,  may  be  excused  when  caused  by  stress  of  weather 
or  some  other  unavoidable  calamity ;  but  delay  beyond  the 
time  fixed  for  the  commencement  of  a  voyage  will  not  be 
allowed. 

§215 

Most  wars  of  any  magnitude  do  not  continue  long  without 
being  marked  by  one  or  more 

Capitulations, 

which  is  the  name  given  to  agreements  for  the  surrender 
on  conditions  of  a  fortified  place,  or  a  military  or  naval 
force.  The  conditions  are  set  forth  in  the 
terms  of  the  agreement,  and  vary  from  a  prom- 
ise to  spare  the  lives  of  those  who  surrender  to  a  grant  of 
"  all  the  honors  of  war "  to  the  vanquished,  a  phrase  which 
means  that  they  are  allowed  to  depart  unmolested  with  colors 
displayed,  drums  beating,  and  their  arms  in  their  hands.  It 
is  not  often  that  such  ample  terms  are  obtained,  nor,  on  the 
other  hand,  does  a  mere  promise  to  spare  life  confer  any 
benefit  upon  the  conquered  beyond  what  is  theirs  already  by 
the  laws  of  modern  warfare.  Generally  the  conditions  of 
capitulations  range  between  the  two  extremes,  being  lenient 
or  severe  according  to  the  nature  and  extent  of  the  straits 
to  which  those  who  surrender  have  been  reduced,  and  the 
degree  of  necessity  the  victors  are  under  of  ending  their 
operations  quickly.  Sometimes,  too,  admiration  for  an 
heroic  defence  will  cause  more  generous  terms  to  be  granted 
than  the  military  situation  would  enable  the  beaten  side  to 
exact.  This  was  the  case  at  Appomattox,  when  the  remnant 
of  Lee's  army  surrendered  to  the  Union  forces  on  April  9, 
1865,  six  days  after  the  fall  of  Richmond  and  the  destruction 
of  the  hopes  of  the  Southern  Confederacy.  General  Grant 
could  certainly  have  enforced  far  harsher  conditions  than  the 


THE  NON-HOSTILE  INTERCOURSE  OF   BELLIGERENTS      563 

dismissal  to  their  own  homes  of  the  foes  who,  in  his  own 
words,  "had  fought  so  long  and  valiantly."1 

Every  officer  in  chief  command  of  an  army,  fleet,  or  forti- 
fied post,  is  competent  to  enter  into  a  capitulation  with 
regard  to  the  forces  or  places  under  his  control;  but  if  he 
makes  stipulations  affecting  other'  portions  of  the  field  of 
hostilities,  they  must  be  ratified  by  the  commander-in-chief 
before  they  become  valid.  Moreover,  the  ratification  of  the 
supreme  authorities  in  the  state  is  required  when  a  com- 
mander, supreme  or  subordinate,  makes  a  capitulation  at 
variance  with  the  terms  of  his  instructions,  or  includes 
political  conditions  among  the  articles  he  agrees  to.  Stipu- 
lations in  excess  of  the  powers  of  those  who  make  them  are 
called  Sponsions,  and  are  null  and  void  unless  the  principals 
on  each  side  accept  them.  In  default  of  such  acceptance,  an 
agreement  of  the  kind  we  are  considering  has  no  validity, 
and  all  acts  done  under  it  must  be  reversed  as  far  as  possi- 
ble. A  good  example  of  a  Sponsion  is  to  be  found  in  the 
Capitulation  entered  into  by  General  Sherman  in  April, 
1865,  with  General  Johnston,  the  commander  of  the  last 
Confederate  army  in  the  field  east  of  the  Mississippi.  On 
condition  that  the  Confederate  soldiers  should  immediately 
disband  and  deposit  their  arms  in  the  arsenals  of  their  re- 
spective states,  it  provided  that  the  state  governments  which 
submitted  to  the  Federal  authorities  were  to  be  recognized, 
and  the  people  of  the  Confederacy  guaranteed  their  politi- 
cal rights  and  franchises  as  citizens  of  the  Union.  These 
conditions  went  beyond  the  sphere  of  military  action,  and 
were  clearly  in  advance  of  the  general's  authority,  though  he 
had  some  reason  to  believe  that  they  would  prove  acceptable.2 
The  government  of  Washington  was,  however,  guilty  of  no 
act  of  bad  faith  when  it  repudiated  them. 

Undoubtedly  it  is  the  right,  it  may  almost  be  called  the 
duty,  of  the  beaten  commander  to  destroy  as  far  as  he  can 

1  U.  S.  Grant,  Personal  Memoirs,  vol.  II,  p.  489. 
8  W.  T.  Sherman,  Memoirs,  vol.  II,  ch.  xxiii. 


564      THE  NON-HOSTILE   INTERCOURSE   OF   BELLIGERENTS 

his  stores,  artillery,  and  instruments  of  warfare  before  he 
makes  his  surrender.  Such  destruction  may  go  on  during 
the  negotiations,  but  it  must  cease  the  moment  the  agree- 
ment is  concluded.  The  point  was  discussed  in  connection 
with  the  capitulation  of  Port  Arthur  in  the  Russo-Japanese 
War.  General  Stoessel  destroyed  war-ships,  battle-flags,  and 
some  of  the  fortifications,  before  he  gave  up  the  place.  But 
inasmuch  as  nothing  of  the  kind  was  done  after  the  signature 
of  the  capitulation  at  9.45  A.M.  on  January  2,  1905,  military 
honor  was  in  no  way  violated.  Japanese  writers  refrain  from 
any  accusations  of  disloyal  conduct,  and  they  regard  the 
surrender  as  having  been  made  in  strict  accordance  with  the 
laws  of  war.1  All  that  the  Hague  code  for  land  warfare 
says  of  capitulations  is  that  they  must  "  take  into  account 
the  rules  of  military  honor,"  and  when  once  settled  must  be 
"scrupulously  observed  by  both  parties."1 

§216 
Lastly  we  must  give  a  brief  outline  of  the  law  of 

Truces  and  Armistices. 

They  are  temporary  suspensions  of  hostilities  over  the  whole 
or  a  portion  of  the  field  of  warfare.  There  is  some  difference 
Truces  and  Armis-  of  opinion  and  usage  as  to  the  terms  to  be  ap- 
plied to  them.  An  agreement  to  cease  from 
active  operations  within  a  limited  area,  for  a  short  time,  and 
with  the  object  of  carrying  out  a  definite  purpose  such  as  the 
burial  of  the  dead,  is  generally  called  a  Suspension  of  Arms, 
but  it  is  also,  and  with  equal  propriety,  termed  an  Armistice, 
the  latter  being  the  English  usage.3  A  similar  agreement, 
extending  over  a  very  long  period  and  applying  to  the  whole 

1  Takahashi,  International  Law  applied  to  the  Eusso-Japanese  War,  p.  210; 
Ariga,  La  Guerre  Russo-Japonaise,  p.  324. 

2  See  Article  35. 

8  Speeches  of  Generals  Voigts-Rhetz,  de  Schonfeld,  and  Hereford  at  the 
Brussels  Conference  of  1874  ;  see  British  State  Papers,  Miscellaneous,  No.  1 
(1875),  p.  209 ;  Holland,  The  Laws  of  War  on  Land,  p.  50. 


THE   NON-HOSTILE   INTERCOURSE   OF   BELLIGERENTS      565 

field  of  warfare,  goes  frequently  by  the  name  of  a  Truce. 
It  amounts  in  fact  to  a  peace,  except  that  no  treaty  is  drawn 
up.  Such  lengthy-  cessations  of  hostilities  are  unknown  in 
modern  warfare,  but  operations  are  often  suspended  for  a 
time  in  order  that  negotiations  may  take  place  between  the 
belligerents,  either  for  a  definite  peace,  or  for  the  surrender 
of  some  place  or  force;  and  these  rifts  in  the  clouds  of  war 
are  called  indifferently  Truces  or  Armistices.  The  chief,  if 
not  the  only  distinction  between  them,  appears  to  be  that 
the  former  is  an  older  word  than  the  latter,  which  has  come 
into  general  use  within  the  last  hundred  and  fifty  years. 
Every  commander  has  power  to  conclude  a  special,  partial,  or 
local  armistice  with  respect  to  the  forces  and  places  under 
his  immediate  control,  but  a  general  armistice  covering  the 
whole  field  of  hostilities  can  be  made  only  by  commanders-in- 
chief  or  diplomatic  representatives,  and  requires  ratification 
by  the  supreme  power  in  the  state.  At  the  end  of  the  Russo- 
Japanese  War  in  1905  the  general  armistice  which  preceded 
the  peace  was  drawn  up  and  signed  by  the  plenipotentiaries 
engaged  in  negotiating  the  main  treaty.  After  laying  down 
a  few  conditions  of  universal  application,  they  provided  for 
special  armistices  for  the  various  parts  of  the  theatre  of  war. 
In  accordance  with  this  stipulation  separate  agreements,  ne- 
gotiated by  the  generals  and  admirals  on  the  spot,  were 
entered  into  for  the  Manchurian  armies  and  the  naval  forces. 
The  delegates  for  the  forces  confronting  one  another  in 
Northern  Korea  were  unable  to  agree,  and  the  matter  dragged 
on,  fortunately  without  bloodshed,  till  the  ratification  of  the 
Treaty  of  Portsmouth  rendered  temporary  arrangements 
unnecessary.1 

The  agreement  for  an  armistice  should  contain  clear  an- 
nouncements with  regard  to  all  matters  as  to  which  the 
intentions  of  the  parties  might  be  doubtful  in  the  absence  of 
specific  declarations,  such,  for  instance,  as  the  exact  day  and 

1  Takahashi,  International  Law  applied  to  the  Busso-Japanese  War, 
pp.  219-224  ;  Ariga,  La  Guerre  Musso-Japonaise,  pp.  648-562. 


566      THE  NON-HOSTILE  INTERCOURSE  OF  BELLIGERENTS 

hour  when  the  armistice  begins  and  ends,  the  exceptions,  if 
any,  from  the  rule  that  no  hostilities  are  to  be  allowed  while 
it  lasts,  the  precise  boundaries  of  the  neutral  zone  that  is 
generally  interposed  between  the  armies,  and  the  prepara- 
tions that  may  be  allowed  for  continuing  the  contest  if  nec- 
essary. The  terms  used  cannot  be  too  precise,  if  dangerous 
disputes  are  to  be  avoided.  In  default  of  definite  stipula- 
tions, we  may  extract  a  certain  amount  of  guidance  from  the 
general  rules  of  International  Law.  But  the  provisions  of 
law-making  documents  do  not  cover  the  whole  ground,  and 
constantly  require  interpretation  from  usage,  which  is  itself 
wanting  in  precision  on  several  points.  The  Hague  Regle- 
ment J  lays  down  that  as  soon  as  an  armistice  is  concluded  it 
should  be  notified  to  all  concerned,  and  adds  that  if  no  defi- 
nite time  has  been  fixed  for  the  suspension  of  hostilities, 
they  cease  immediately  after  the  notification.  If  the  dura- 
tion of  the  armistice  has  not  been  agreed  upon,  either  bellig- 
erent may  resume  operations  at  any  moment,  provided  that 
he  gives  clear  and  sufficient  notice  to  his  foe.  The  difficult 
subject  of  the  kind  and  amount  of  intercourse  which  may  be 
allowed  during  an  armistice  between  the  invaders  and  the 
population  in  the  theatre  of  war,  or  between  the  inhabitants 
of  an  occupied  territory  and  their  fellow-subjects  in  adjacent 
unoccupied  districts,  should  be  settled  in  the  terms  of  the 
armistice.  When  one  side  violates  the  armistice,  the  other 
has  the  right  of  denouncing  it,  "  and  even,  in  cases  of  ur- 
gency, of  recommencing  hostilities  immediately."  If,  how- 
ever, the  breach  of  the  conditions  agreed  upon  is  the  act  of 
unauthorized  individuals,  the  side  that  suffers  has  no  right  to 
bring  the  arrangement  to  an  end,  but  it  may  demand  the 
punishment  of  the  guilty  parties  and  an  indemnity  for  any 
losses  it  has  sustained. 

There  is  a  controversy  whether  during  an  armistice  a  bel- 
ligerent may  do,  in  the  actual  theatre  of  war,  only  such  things 
as  the  enemy  could  not  have  prevented  him  from  doing  at 
i  See  Articles  36-41. 


THE   NON-HOSTILE  INTERCOURSE  OF   BELLIGERENTS      567 

the  moment  when  active  hostilities  ceased,  or  whether  he 
may  do  whatever  is  not  forbidden  expressly,  except,  of 
course,  attack  the  enemy  or  advance  further  into  his  territory. 
The  weight  of  authority  is  in  favor  of  the  former  alternative; 
but  the  weight  of  reasoning  seems  on  the  side  of  the  latter, 
which  has  the  decisive  support  of  recent  practice.1  Beyond 
the  zone  of  active  operations  the  parties  may  perform  what 
acts  of  naval  and  military  preparation  they  please.  They 
can  fit  out  ships,  move  troops,  recruit  armies,  and,  in  short, 
act  as  if  hostilities  were  still  going  on.  There  is,  however,  a 
dispute  about  the  revictualling  of  a  besieged  place.  This  is 
a  matter  eminently  fit  for  settlement  by  one  of  the  articles 
of  the  armistice.  Generally  the  besiegers  are  the  stronger 
party  and  dictate  their  own  terms,  as  the  Germans  did  in 
1871,  when  they  would  not  allow  Paris  to  receive  any  sup- 
plies during  the  armistice  which  preceded  its  surrender. 

1  Oppenheim,  International  Law,  TO!.  II,  pp.  248,  249  ;  Despagnet,  Droit 
International  Public,  §  564 ;  Bonfils-Fauchille,  Manuel  de  Droit  Interna- 
tional Public,  §§1253-1256;  Hall,  International  Law,  5th  ed.,  pp.  545-648. 


CHAPTER  VIII 

PEACE  AND  THE  MEANS  OF  PRESERVING  PEACE 
§217 

WAR  between  civilized  states  is  almost  invariably  ended 
by  a  treaty  of  peace.  It  has  sometimes  happened  that  the 
The  termination  of  belligerents  have  exhausted  themselves  and 
war-  tacitly  ceased  from  further  operations,  but  there 

are  no  recent  instances  of  such  a  termination  to  hostilities  in 
a  struggle  of  any  consequence,  except  the  withdrawal  of  the 
French  troops  from  Mexico  in  1867  at  the  instigation  of  the 
United  States.  Wars  may  come  to  an  end  through  the  de- 
struction of  one  of  the  communities  engaged  in  them,  as 
Poland  was  destroyed  by  the  Third  Partition,  or  as  the 
Southern  Confederacy  fell  after  four  years  of  strenuous  con- 
flict. In  such  cases  no  treaty  is  possible  because  there  is  no 
body  politic  left  for  the  victor  to  treat  with.  Great  Britain, 
however,  strained  a  point  in  1902  because  of  the  special  cir- 
cumstances of  the  Boer  War,  and  consented  to  negotiate  with 
the  leaders  of  the  Boer  commandoes  still  in  the  field  against 
her,  though  the  governments  in  whose  name  they  waged  war 
had  ceased  to  govern,  and  no  longer  exercised  any  powers  of 
sovereignty  over  definite  territorial  areas.1  But  when  each 
of  the  belligerents  preserves  its  politcal  identity  after  the 
war,  a  treaty  is  drawn  up  embodying  the  conditions  of  peace. 
Sometimes  two  agreements  prove  necessary  —  a  treaty  em- 
bodying what  are  called  the  preliminaries,  and  a  subsequent 
instrument  called  the  definitive  treaty  of  peace.  Warlike 
acts  generally  cease  on  the  signature  of  the  preliminary 
treaty,  the  provisions  of  which  are  adopted  and  extended  in 

1  "  Times"  History  of  the  War  in  South  Africa^  ch.  xxi. 
568 


,      PEACE   AND   THE  MEANS   OF   PRESERVING   PEACE      569 

the  definitive  treaty  which  takes  its  place.  As  a  rule  this 
document  settles  all  the  matters  in  dispute.  But  on  rare 
occasions  the  difficulties  of  a  settlement  prove  insuperable, 
and  the  parties  content  themselves  with  providing  for  the 
restoration  of  peace  and  amity.  This  was  the  case  with 
Great  Britain  and  the  United  States  in  1814,  when  the 
Treaty  of  Ghent  terminated  the  war  between  them  without 
solving  any  of  the  difficult  questions  which  had  originally 
caused  it.  Such  a  curious  combination  of  a  strong  desire  to 
terminate  the  struggle  with  an  equally  strong  inability  to 
agree  upon  a  settlement  of  the  points  at  issue  is  seldom  found. 
Generally  the  causes  of  the  quarrel  are  dealt  with  in  the 
instrument  which  restores  peace,  and  it  contains  in  addition 
various  stipulations  concerning  the  new  order  of  things  which 
is  to  follow  the  termination  of  hostilities.  Private  rights 
are  safeguarded,  provision  is  made  for  the  resumption  of 
commercial  intercourse,  and  legal  matters  of  an  international 
character  receive  due  attention. 

§218 

The  restoration  of  a  state  of  peace  carries  with  it  certain 
consequences  defined  by  International  Law,  and  not  depend- 
ent for  their  existence  upon  treaty  stipula-  The  legal  conse. 
tions,  though  they  may  be  modified  or  set  ^^^ 
aside  thereby.  The  moment  a  treaty  of  peace  peace- 
is  signed,  belligerent  rights  cease.  There  must  be  no  more 
fighting.  Requisitions  and  contributions  can  be  levied  no 
longer  by  an  occupying  army,  and  arrears  of  them  remaining 
unpaid  cannot  be  demanded.  The  right  to  detain  prisoners 
of  war  as  such  ceases,  though  convenience  dictates  that  they 
shall  remain  under  supervision  till  proper  arrangements  can  be 
made  for  their  return  home,  which  should  take  place  as  soon 
as  possible.1  When  the  area  of  warfare  is  very  large,  and  por- 
tions of  it  are  too  remote  to  be  reached  by  quick  modes  of 
communication,  it  is  usual  to  fix  in  the  treaty  a  future  date 
1  See  Hague  Reglement,  Article  20. 


570   PEACE  AND  THE  MEANS  OF  PEESEEVING  PEACE 

for  the  cessation  of  hostilities  in  those  distant  parts.  But 
if  official  news  of  the  restoration  of  peace  reaches  them  be- 
fore the  time  fixed,  it  seems  to  be  settled  that  no  further  acts 
of  war  may  be  committed.  The  notification  must,  however, 
come  from  the  government  of  a  belligerent  in  order  to  be 
binding  upon  its  commanders.  They  are  under  no  obliga- 
tion to  take  notice  of  information  derived  from  any  other 
source.  This  was  clearly  laid  down  by  the  French  Council 
of  Prizes  in  the  case  of  the  Swineherd,  a  British  ship  captured 
in  the  Indian  Ocean  in  1801,  within  the  five  months  fixed  by 
the  Treaty  of  Amiens  for  the  termination  of  hostilities  in 
those  regions,  but  after  the  French  privateer  which  made 
the  capture  had  received  news  of  the  peace.  The  informa- 
tion was,  however,  English  and  Portuguese  in  its  sources. 
No  notification  of  an  official  character  had  been  received 
from  France,  and  the  capture  was  therefore  adjudged  to  be 
legal.1  Captures  made  in  ignorance  after  the  conclusion  of 
peace,  or  after  the  time  fixed  in  the  treaty  for  the  termina- 
tion of  hostilities,  must  be  restored,  and  the  effects  of  all 
acts  of  war  performed  under  similar  circumstances  must  be 
undone  as  far  as  possible. 

At  the  conclusion  of  peace  those  private  rights  which  have 
been  suspended  during  the  war  are  revived.  Thus  in  coun- 
tries which  give  an  enemy  subject  no  right  of  admission 
to  their  courts,  debts  due  from  subjects  of  one  of  the 
powers  lately  belligerent  to  subjects  of  the  other  can  again 
be  sued  for,  and  contracts  made  before  the  war  between 
private  individuals  on  opposite  sides  in  the  struggle  can  be 
enforced  at  law.  But  specific  performance  cannot  be  de- 
manded if  any  act  done  in  furtherance  of  warlike  operations, 
or  as  an  incident  of  them,  has  rendered  it  impossible.  A 
man,  for  instance,  cannot  be  compelled  to  fulfil  an  agreement 
to  sell  a  particular  house  or  a  particular  herd  of  cattle,  if  the 
house  has  been  battered  to  pieces  in  a  siege  or  the  cattle 
requisitioned  and  eaten  by  the  enemy.  When  a  period  is 
1  Snow,  Oases  on  International  Law,  pp.  388,  389,  note. 


PEACE   AND   THE  MEANS   OF   PRESERVING   PEACE 

put  to  legal  obligations,  the  time  does  not  run  during  the  con- 
tinuance of  hostilities.  Let  us  take  as  an  example  the  pay- 
ment of  a  debt,  the  recovery  of  which  is  barred  after  seven 
years  by  a  statute  of  limitations.  It  could  be  enforced  at  the 
end  of  a  war,  provided  that  less  than  seven  years  had  elapsed 
between  the  time  when  the  debt  was  contracted  and  the 
outbreak  of  hostilities,  and  it  could  also  be  enforced  at  any 
subsequent  period,  provided  that  the  time  between  the  signa- 
ture of  the  peace  and  the  commencement  of  the  action,  added 
to  the  time  between  the  incurring  of  the  debt  and  the  war, 
did  not  exceed  seven  years.  This  is  the  view  taken  by  the 
courts  of  the  United  States,  but  it  seems  that  there  are 
English  authorities  to  the  contrary.1  In  the  absence  of  inter- 
national agreement  each  state  can  adopt  the  view  it  prefers. 
As  between  the  belligerent  powers  themselves,  it  is  held 
that  the  conclusion  of  peace  legalizes  the  state  of  possession 
existing  at  the  moment,  unless  special  stipulations  to  the 
contrary  are  contained  in  the  treaty.  This  is  called  the 
principle  of  uti  possidetis,  and  it  is  of  wide  and  far-reaching 
application.  Cities,  districts,  and  provinces  held  in  bellig- 
erent occupation  by  an  enemy,  fall  to  him  by  the  title  of- 
conquest,  when  it  is  not  expressly  stated  that  they  are  to 
be  evacuated.  Captures  from  an  enemy  made  at  sea  but 
not  yet  condemned  by  a  Prize  Court  become  the  lawful  pos- 
sessions of  the  captor,  and  seizures  on  land  of  such  things 
as  a  belligerent  is  allowed  by  the  laws  of  war  to  appropriate 
are  his  by  good  title.  It  is  very  rarely  desired  that  all  these 
consequences  should  follow  the  conclusion  of  peace.  The 
victor  does  not  wish  to  acquire  in  perpetuity  every  post  he 
holds  when  hostilities  cease,  nor  does  the  vanquished  intend 
to  give  up  whatever  territory  may  be  at  the  moment  in  the 
hands  of  his  adversary.  Accordingly  when  one  side  has 
overrun  large  districts  and  captured  many  places,  the  treaty 
of  peace  almost  invariably  contains  elaborate  stipulations 
with  regard  to  them.  Their  future  destination  is  settled  by 
1  Westlake,  International  Law,  part  II,  p.  49  and  note  1. 


572      PEACE  AND  THE  MEANS   OF   PRESERVING   PEACE 

express  agreement,  and  detailed  provisions  are  made  for  the 
regulation  of  proprietary  and  personal  rights  and  obligations. 
Arrangements  that  seem  at  first  sight  to  be  pedantic  in  their 
minuteness  are  often  necessary  to  carry  out  the  intentions 
of  the  parties  in  the  face  of  the  rule  that,  when  there  are  no 
express  stipulations  to  the  contrary,  the  principle  of  uti  pos- 
sedetis  prevails. 

§219 

Among  the  most  extraordinary  phenomena  of  modern 
times  we  may  reckon  the  simultaneous  growth  of  the  mate- 
The  simultaneous  Tls^  preparations  for  warfare  and  a  sentiment 
growth  of » horror  of  horror  and  reprobation  of  war.  Both  are 

of  war  and  prepa- 
rations for  war.       apparent  all  over  the  civilized  world. 

The  doctrine  that  nations  cannot  long  retain  the  manly 
virtues  of  courage  and  endurance  unless  their  populations 
are  from  time  to  time  disciplined  in  the  hard  school  of  war 
is  obviously  false.  In  this  age  of  self-indulgence  and  luxury 
those  who  wish  well  to  their  kind  (Jannot  too  often  repeat 
that  the  exclusive  pursuit  of  wealth  and  material  comfort  is 
dangerous  and  debasing.  But  it  does  not  follow  from  this 
most  wholesome  truth  that  perpetual  peace  is  a  dream,  and 
not  even  a  beautiful  dream.  We  see  in  England  a  country 
in  which  the  physical  perfection  of  manhood  is  often  attained 
by  outdoor  sports  and  healthy  exercises.  Across  the  Atlantic 
we  find  another  people,  among  whom  intense  patriotism  and 
a  most  jealous  regard  for  the  honor  of  the  flag  is  kept  alive 
without  the  existence  of  a  standing  army  of  sufficient  size  to 
be  an  appreciable  factor  in  the  national  life.  All  around  us 
are  examples  of  the  most  heroic  self-sacrifice.  It  is  kindled 
not  only  by  religious  fervor  or  the  enthusiasm  of  humanity, 
but  by  devotion  to  truth  and  beauty,  or  even  by  zeal  for 
discovery  and  love  of  enterprise.  And  among  those  by 
whom  it  is  felt  in  the  highest  degree  are  many  who 
have  never  seen  a  battle-field,  or  even  learnt  the  rudiments 
of  military  drill.  While  there  are  new  countries  to  be 


PEACE   AND   THE   MEANS   OF   PRESERVING    PEACE      573 

explored,  new  tracts  to  be  reclaimed  from  the  wilderness  arid 
tamed  for  the  service  of  man,  there  will  never  be  lacking  an 
ample  field  for  the  utmost  energy  of  the  restless  and  the 
adventurous.  While  there  are  seas  to  be  crossed  and  moun- 
tains to  be  climbed,  skill  and  daring  will  be  in  constant 
demand.  The  fireman  in  the  burning  building  is  as  brave 
as  the  soldier  in  the  breach.  The  miner  in  his  underground 
galleries  has  as  much  need  of  coolness  and  courage  as  the 
engineer  in  the  trenches.  Domestic  life  gives  a  far  better 
training  in  self-control  and  self-denial  than  the  camp  or  the 
battle-field.  Obedience  and  discipline  are  qualities  necessary 
for  the  successful  pursuit  of  countless  manufacturing  indus- 
tries. Loyalty  to  comrades  is  developed  by  engaging  with 
others  in  the  work  of  political  or  religious  organization. 
The  destruction  and  waste  caused  by  war,  the  passions  it 
stirs  up,  and  the  suffering  and  vice  which  follow  in  its  train, 
are  a  terrible  price  to  pay  for  noble  qualities  that  may  be 
gained  in  other  ways.  Peace  does  not  necessarily  mean 
sloth  and  luxury.  Men  can  be  manly  without  periodical 
resort  to  the  occupation  of  mutual  slaughter.  It  is  not 
necessary  to  graduate  in  the  school  of  arms  in  order  to  learn 
the  hard  lessons  of  duty  and  honor  and  self-sacrifice.  No 
doubt  the  wealth  which  accumulates  in  time  of  peace  may  be 
abused  for  purposes  of  wanton  self-indulgence.  Ignoble 
ease  has  sometimes  sapped  the  virility  of  nations.  But  has 
not  war  again  and  again  turned  the  victors  into  human 
swine,  and  the  vanquished  into  hunted  wild  beasts?  No 
condition  is  without  its  pitfalls.  But  to  guard  against  the 
moral  dangers  of  peace  by  deliberately  incurring  the  evils  of 
war  is  like  plunging  into  a  furnace  because  fire  has  been 
known  to  have  a  purifying  effect. 

In  the  past  war  has  often  been  a  game  which  kings  have 
played  in  the  interests  of  personal  or  dynastic  ambitions. 
With  the  advance  of  democracy  it  is  passing  more  and 
more  under  the  control  of  peoples.  They  are  hardly  likely 
to  engage  in  it  deliberately  after  cool  calculation  as  a  mere 


674      PEACE  AND   THE  MEANS   OF   PRESERVING   PEACE 

move  in  a  deep  political  scheme,  but  they  may  be  easily  led 
into  it  through  ignorance,  or  driven  into  it  through  resent- 
ment and  fury.  The  best  hope  for  the  future  lies  in  their 
enlightenment  as  to  their  true  interests,  and  their  moral 
improvement  to  the  point  of  regarding  every  unnecessary 
conflict  as  at  once  a  blunder  and  a  crime. 

War  burdens  are  borne  with  more  or  less  of  cheerfulness 
to-day  because  they  are  regarded  as  insurances  against 
worse  evils.  No  important  state  dares  to  disarm  lest  its 
defenceless  condition  should  tempt  some  unscrupulous  neigh- 
bor to  annex  it,  or  at  least  to  undermine  its  position  in  the 
world  and  make  inroads  on  its  wealth  or  territory.  In 
consequence  of  this  mutual  distrust  nations  are  content  to 
live  in  a  condition  of  armed  peace,  which  imposes  crushing 
burdens  on  their  pecuniary  resources,  and  seriously  impedes 
economic  and  social  progress.  In  Europe  alone  about  four 
and  a  half  million  men  are  withdrawn  from  productive  occu- 
pations, and  trained  in  the  arts  of  destruction,  at  an  annual 
cost  of  about  three  hundred  million  pounds  sterling.  Were 
war  to  break  out,  this  number  could  be  more  than  doubled 
at  once,  and  by  calling  up  reserves  and  territorial  forces  of 
all  kinds  it  could  be  increased  to  twenty  millions.1  There 
are  differences  of  opinion  among  statesmen  as  to  whether 
the  cost  of  these  preparations  for  conflict  is  increasing  faster 
than  the  resources  available  to  meet  it;  but  no  one  doubts 
that  if  it  ceased  wholly  or  in  part  to  be  levied  on  industry, 
an  immense  advance  would  take  place  in  general  prosperity 
and  social  amelioration.2  Nor  is  this  all.  An  army  may  be 
a  school  of  honor  and  discipline ;  but  it  may  be  also  a 
school  of  vice,  too  often  state-established  and  state-endowed. 
The  moral  effects  of  the  existing  system  are  at  best  mixed, 
and,  as  we  have  just  seen,  it  is  possible  to  obtain  what  is 
good  in  them  by  other  means.  Its  material  effects  are 
harmful,  if  not  absolutely  disastrous ;  while  the  addition  to 

1  Calculated  from  figures  given  in  The  Statesman's  Year  Book,  1910. 
*  Higgins,  The  Hague  Peace  Conferences,  p.  76. 


PEACE   AND  THE  MEANS   OF  PRESERVING   PEACE      575 

the  sum  of  human  suffering  produced  by  actual  war  is  so 
terrible  that  mankind  would  rise  in  general  insurrection 
against  it,  could  each  individual  human  being  be  made  to 
realize  its  horrors.  And  yet  it  lasts.  There  must  be  some 
strong  reason  that  keeps  alive  an  institution  convicted  of  so 
much  evil.  When  every  allowance  is  made  for  the  influence 
of  the  countless  interests  concerned  in  the  perpetuation  of 
wars ;  when  due  account  is  taken  of  the  pugnacity  inherent 
in  mankind  ;  when  full  importance  is  given  to  the  sanguine 
spirit  which  causes  a  whole  people  to  believe  that  the 
sufferings  and  disgraces  will  fall  to  its  enemy,  the  glory  and 
advantages  to  itself ;  it  nevertheless  remains  clear  that  these 
things  alone  will  not  account  for  the  phenomenon.  The 
truth  is  that  in  the  last  resort  war  is  the  only  safeguard  for 
what  virile  nations  hold  more  dear  than  material  prosperity 
—  their  independence,  their  honor,  their  position  of  in- 
fluence in  the  world.  And  therefore  war  will  endure,  till 
overbearing  and  unscrupulous  states  are  restrained  by 
international  tribunals  and  a  strong  international  police 
force. 

It  is  useless  to  reply  that  most  states  desire  nothing 
more  than  security  for  themselves  and  their  possessions.  As 
long  as  there  are  any  who  cannot  be  trusted,  precautions 
against  them  must  be  taken.  And  there  is  also  the  psycho- 
logical fact,  as  conspicuous  in  nations  as  in  individuals,  that 
opportunity  often  produces  evil  desires  which  would  not 
have  existed  without  it.  Until  civilized  humanity  has  called 
into  being  alternatives  to  war  which  effectively  safeguard 
peaceable  and  justly  disposed  states,  there  can  be  no  general 
unarming,  though  it  may  perhaps  be  possible  to  put  a  check 
on  the  present  futile  competition  in  armaments,  which  ends 
in  leaving  the  powers  that  carry  it  on  in  the  same  relative 
position  as  before,  only  very  much  poorer.  Hague  Con- 
ferences may  pass  and  confirm  resolutions  setting  forth  the 
restriction  of  military  charges  as  a  desirable  object  to  be 
aimed  at,  and  recommend  the  serious  examination  of  the 


576      PEACE  AND   THE  MEANS   OF   PRESERVING   PEACE 

question  by  governments ; l  but  they  will  not  be  able  to  take 
active  measures  till  some  High  Court  of  International  Justice 
has  been  brought  into  operation  and  proved  itself  a  just  and 
capable  tribunal.  Such  a  consummation  is  perhaps  nearer 
than  is  generally  believed ;  and  if  it  were  accompanied  by 
something  like  the  League  of  Peace  advocated  by  ex-President 
Roosevelt  in  his  Nobel  Prize  address  at  Christiania,2  it  might 
form  the  prelude  to  a  great  reduction  of  armaments.  And 
possibly  a  quickening  of  energy  in  this  direction  may  result 
from  a  growing  perception  that  the  economic  interests  of 
states  are  now  so  intertwined  that  severe  injury  done  to  the 
prosperity  of  an  enemy  would  react  with  enormous  force  on 
the  belligerent  which  inflicted  it,  and  on  neutral  powers.8 
To  take  an  extreme  instance,  the  destruction  through  success- 
ful invasion  of  the  immense  credit  system  which  has  its 
centre  in  London  and  its  main  support  in  the  Bank  of  Eng- 
land, would  ruin  the  international  trade  of  most  of  the 
countries  of  the  civilized  world.  War  was  always  barbarous. 
It  is  rapidly  becoming  foolish.  We  may  succeed  in  making 
it  very  rare,  though  we  can  hardly  hope  to  abolish  it  entirely. 
Even  in  an  epoch  of  general  disarmament  human  folly  and 
human  passion  would  sometimes  have  their  way.  When  the 
will  to  injure  was  overwhelmingly  strong  the  means  of  attack 
could  be  improvised,  and  the  fear  of  an  international  police 
force  would  no  more  act  as  a  deterrent  in  every  instance 
than  does  the  fear  of  a  municipal  police  force  in  the  case  of 
domestic  criminals.  Not  till  man  has  ceased  to  desire  evil, 
will  evil  vanish  from  the  face  of  the  earth.  But  meanwhile 
everything  that  is  possible  should  be  done  to  reduce  it  to  a 
minimum ;  and  at  present  the  most  hopeful  line  of  advance 
in  the  attack  on  the  particular  evil  we  are  considering  lies  in 
the  development  of  international  arbitration. 

1  See  the  Final  Acts  of  the  Conferences  of  1899  and  1907. 

2  See  The  Times,  May  6,  1910. 

8  Norman  Angell,  The  Q-reat  Illusion,  pt.  I,  chs.  IV,  V. 


PEACE   AND  THE  MEANS  OF   PRESERVING   PEACE      577 
§  220 

The  increase  of  commercial  and  social  intercourse  among 
nations,  the  vast  growth  of  sea-borne  commerce,  and  the  ex- 
treme  mobility   of   capital,  have  combined   to  international 
unify  the  interests  of  the  civilized  world  in  a  way  commissions  of 

•      inquiry,  and 

which  would  have  been  deemed  impossible  a  cen-  special  mediation, 
tury  ago.  At  the  same  time  the  destructive  power  of  weapons 
has  become  enormously  greater  than  it  ever  was  before,  and 
earth  and  sea  and  air  are  all  alike  destined  to  be  scenes  of 
combat.  The  prospect  of  general  ruin  in  a  war  fought  to  a 
finish  between  two  powerful  and  determined  states  is  so 
appalling  that  the  stoutest  hearts  may  well  quail  before  it. 
There  is  little  chance  that  the  rulers  of  the  leading  powers 
will  deliberately  provoke  a  struggle  with  an  equal  foe, 
especially  if  an  easy  way  of  escape  lies  open  in  a  resort  to 
a  trustworthy  tribunal.  But  ignorance  may  lead  to  hostili- 
ties by  way  of  impossible  demands  or  unreasonable  refusals, 
and  passion  may  provoke  a  conflict  from  which  reason  would 
shrink.  Both  the  Hague  Conferences  were,  alive  to  these 
dangers,  and  endeavored  to  guard  against  them,  as  well  as 
to  provide  better  means  of  arbitration  than  had  existed 
before. 

To  combat  ignorance  the  device  of  International  Com- 
missions of  Enquiry  was  adopted.  The  first  Convention  of 
the  Conference  of  1899  laid  down  that  such  Commissions 
were  expedient  when  international  disputes  arose  from  a 
difference  of  opinion  on  matters  of  fact,  and  provided  that 
they  might  be  constituted  by  special  agreement  between  the 
parties.  Failing  this,  each  party  was  to  appoint  two  members, 
and  the  four  thus  selected  were  to  choose  a  fifth.  The  agree- 
ment to  enquire  was  to  define  the  fact  or  facts  to  be  investi- 
gated and  settle  the  procedure.  The  powers  at  variance 
were  to  afford  the  commissioners  all  the  facilities  necessary  for 
a  complete  investigation.  Their  report  was  limited  to  a  find- 
ing of  fact,  and  expressly  divested  of  the  character  of  an 


578      PEACE   AND  THE  MEANS   OF   PRESERVING   PEACE 

arbitral  award.1  The  Conference  of  1907  amplified  the 
scheme  of  its  predecessor,  especially  in  the  matter  of  pro- 
cedure. In  this  it  followed  to  a  great  extent  the  rules 
adopted  by  the  North  Sea  Commission,  which  sat  in  1905 
to  determine  whether  Japanese  torpedo  boats  were  present 
among  the  British  fishing  smacks  on  the  Dogger  Bank  when 
the  Russian  Baltic  Fleet  fired  into  them  late  at  night  on 
October  21.  The  appointment  of  this  Commission  had  been 
due  to  the  Convention  of  1899,  though  the  two  powers  had 
deliberately  gone  beyond  its  terms,  and  entrusted  the  com- 
missioners with  the  duty  of  fixing  the  responsibility  and 
apportioning  the  blame,  in  addition  to  ascertaining  the 
truth  about  the"  disputed  fact.  The  experience  gained  in 
this  enquiry  was  placed  at  the  disposal  of  the  Hague  Con- 
ference of  1907,  and  enabled  it  to  make  many  improvements 
in  the  original  scheme.  It  laid  down  in  its  first  Convention 
that  one  only  of  the  two  members  appointed  by  each  party 
"can  be  its  national  or  chosen  from  among  the  persons 
selected  by  it  as  members  of  the  Permanent  Court,"  the 
constitution  of  -which  will  be  described  in  the  next  section. 
In  addition  it  made  a  number  of  new  rules  to  deal  with  de- 
tails or  meet  difficulties  unforeseen  in  1899.  For  instance, 
it  provided  for  the  filling  up  of  vacancies  on  the  Commission, 
the  appointment  of  Assessors,  and  the  use  of  the  offices  and 
staff  of  the  International  Bureau  at  the  Hague.  Moreover 
it  gave  power  to  prosecute  enquiries  in  places  other  than  the 
seat  of  the  Commission  with  the  permission  of  the  state  or 
states  concerned,  and  it  pledged  the  governments  of  the 
signatory  powers  to  give  every  facility  allowed  by  their  laws 
for  the  collection  of  evidence  and  the  summoning  of  wit- 
nesses.2 

In  order  to  eliminate  as  far  as  possible  the  element  of 
passion  the  Hague  Conferences  magnified  the  office  of  medi- 
ator, and  on  the  initiative  of  Mr.  Holls,  the  secretary  of  the 
American  delegation,  recommended  the  use  of  what  it  called 
i  See  Articles  9-14,  «  See  Articles  9-36, 


PEACE  AND   THE  MEANS   OF  PRESERVING   PEACE      579 

special  mediation.1  A  mediator  is  one  who,  either  at  the 
request  of  the  powers  at  variance  or  on  his  own  initiative,  is 
entrusted  with  the  duty  of  looking  into  the  matters  in  dis- 
pute and  endeavoring  to  devise  some  method  of  peaceful 
settlement.  His  suggestions  have  no  binding  force.  The 
principals  in  the  quarrel  are  free  to  accept,  reject,  or  modify 
them.  The  signatory  powers  at  the  Hague  bound  themselves 
to  have  recourse  to  mediation  "  as  far  as  circumstances  allow," 
and  declared  that  an  offer  to  mediate  "  can  never  be  regarded 
by  either  of  the  parties  at  variance  as  an  unfriendly  act." 
They  went  on  to  suggest,  under  the  head  of  special  media- 
tion, that  in  suitable  cases  each  of  the  contending  states 
should  choose  a  friendly  power,  which  should  enter  into  com- 
munication with  the  power  chosen  by  the  other  side  with  a 
view  to  composing  the  dispute.  For  this  purpose  thirty 
days,  if  necessary,  are  allowed,  and  during  that  period  the 
principals  are  to  enter  into  no  direct  communications  with 
each  other.  It  was  hoped  that  in  this  way  time  would  be 
gained  for  the  passions  of  the  contending  states  to  cool, 
while  unbiassed  intellects  examined  the  controversy  and 
strove  to  settle  it.  The  plan  has  had  no  formal  trial  as  yet, 
but  it  seems  so  excellent  that  we  may  hope  it  would  prove 
effective.  The  provisions  concerning  it,  and  ordinary  medi- 
ation also,  were  embodied  by  the  Conference  of  1899  in  its 
Convention  for  the  Pacific  Settlement  of  International  Dis- 
putes, and  reenacted  by  the  Conference  of  1907  with  only  a 
few  verbal  alterations.2 

§221 

We  now  pass  on  to  consider  arbitration,  the  most  im- 
portant of  the  means  of  settling  international  quarrels  with- 
out resort  to  war.  Its  value  resides  in  its 

.        .  Arbitration. 

judicial  or  quasi-judicial  character.     It  signifies 

the  reference  of  the  dispute  to  an  individual,  or  small  group 

i  Holls,  The  Peace  Conference  at  the  Hague,  pp.  187-189, 
a  See  Articles  2-8. 


580     PEACE   AND  THE  MEANS   OF   PRESERVING   PEACE 

of  individuals,  to  whom  the  parties  state  their  respective 
cases,  and  whose  decision  they  are  in  honor  bound  to  obey, 
and  in  fact  have  always  obeyed,  the  only  instance  to  the 
contrary  being  due  to  the  fact  that  the  arbitrator  had  ex- 
ceeded his  powers.1  At  present  states  are  under  no  obliga- 
tion to  submit  their  disagreements  to  arbitration,  unless  they 
have  entered  beforehand  into  a  treaty  which  binds  them  to 
do  so.  But  the  Hague  Conference  of  1907  applied  to  them 
something  little  short  of  compulsion  as  regards  a  particular 
kind  of  dispute.  By  the  first  article  of  its  Convention  con- 
cerning the  recover}'-  of  contract  debts  the  contracting  powers 
agreed  not  to  use  armed  force  for  such  a  purpose  when  the 
debts  were  due  to  their  subjects  from  the  government  of 
another  country,  unless  the  debtor  state  refused  to  arbitrate, 
or  after  giving  a  nominal  assent  either  rendered  arbitration 
impossible  or  rejected  the  award.  When  a  dispute  is  sub- 
mitted to  arbitration  the  matter  takes  on  the  semblance  of  a 
trial  before  a  court,  and  the  likeness  grows  as  International 
Law  becomes  more  fixed  and  determinate.  Arbitral  tribunals 
and  arbitral  procedure  are  rapidly  developing  at  the  present 
time ;  and  the  hope  of  those  who  desire  to  place  the  society 
of  nations  under  a  reign  of  law  is  that  out  of  them  will  soon 
grow  a  High  Court  of  Justice,  charged  with  the  exalted  duty 
of  deciding  cases  wherein  states  are  suitors  and  international 
interests  are  the  matters  at  stake. 

Arbitration  is  no  new  thing.  It  has  existed  almost  as  long 
as  war.  But  in  the  absence  of  a  well  developed  code  of 
International  Law  arbitral  decisions  were  often  based  on 
purely  political  grounds  or  on  considerations  of  general 
equity.  Up  to  1899  the  parties  had  to  construct  their 
own  tribunal  on  each  occasion,  after  their  minds  had  been 
inflamed  by  diplomatic  controversy.  It  was  clear  that  the 
prospects  of  peaceful  settlement  would  be  greatly  improved 
by  the  existence  of  a  standing  tribunal  ready  at  any  time  to 
take  cognizance  of  cases  submitted  to  it.  The  First  Hague 

1  Lawrence,  International  Problems  and  Hague  Conferences,  pp.  81,  82. 


PEACE   AND   THE   MEANS   OF   PRESERVING   PEACE      581 

Conference  supplied  the  need  in  part,  and  earned  thereby  a 
title  to  immortal  fame.  It  established  what  was  called  the 
Permanent  Court  of  Arbitration,  with  an  International  Bureau 
at  the  Hague  to  serve  as  record  office  and  secretariat,  and  a 
Permanent  Administrative  Council  to  control  the  Bureau. 
To  create  the  Permanent  Court  of  Arbitration  each  signatory 
power  was  to  select  not  more  than  four  persons  "  of  known 
competency  in  questions  of  International  Law  "  and  "  of  the 
highest  moral  reputation."  Out  of  the  list  of  possible  judges 
thus  brought  into  existence  the  parties  to  a  dispute  might 
select  the  members  of  a  tribunal  to  decide  their  difference, 
unless  they  preferred  to  constitute  it  in  some  other  way  by 
special  arrangement  between-  themselves.  If  they  referred 
the  dispute  to  the  Hague  Tribunal  and  disagreed  over  the 
choice  of  arbitrators,  each  of  them  was  to  appoint  two,  and 
the  four  thus  chosen  were  to  select  an  umpire,  all  five  being 
chosen  from  the  list  before  referred  to.1  The  Conference  of 
1907  made  many  improvements  in  the  scheme  of  its  prede- 
cessor, while  preserving  the  main  features  unaltered.  The 
method  of  constituting  an  arbitral  tribunal  by  selection  from 
a  panel  of  possible  judges  was  retained,  with  the  important 
addition  that  of  the  two  arbitrators  appointed  by  each  party 
"  one  only  can  be  its  national,  or  chosen  from  among  the  per- 
sons selected  by  it  as  members  of  the  Permanent  Court." 
But  the  main  additions  were  concerned  with  the  regulation 
of  procedure,  and  the  compromis,  or  preliminary  agreement 
defining  the  points  at  issue  and  making  arrangements  for 
the  due  conduct  of  the  case.  The  parties  are  to  draw  it  up 
by  mutual  agreement,  but  the  Permanent  Court  is  competent 
to  settle  it,  if  requested  by  them  to  do  so.  The  request  of 
one  of  them  is  sufficient  in  cases  when  the  dispute  falls  within 
a  general  treaty  of  arbitration  concluded  by  the  powers  con- 
cerned, or  when  it  arises  from  contract  debts  as  to  which  an 
offer  of  arbitration  has  been  accepted  by  the  recalcitrant 

1  Convention  of  1899  for  the  Pacific  Settlement  of  International  Disputes, 
Articles  20-57. 


582  PEACE  AND  THE  MEANS  OF  PRESERVING  PEACE 

power.  Here  we  have  something  very  like  the  summoning 
of  an  unwilling  party  before  a  tribunal,  and  though  a  loop- 
hole of  escape  is  provided  in  both  cases,  the  provision  is  sig- 
nificant of  future  developments.1 

The  Second  Hague  Conference  not  only  revised  and  ampli- 
fied the  work  of  the  First  in  the  matter  of  international 
arbitration,  but  it  also  added  provisions  for  summary  pro- 
cedure in  disputes  about  matters  of  secondary  importance. 
Each  of  the  parties  at  variance  is  to  appoint  an  arbitrator, 
and  these  two  are  to  choose  an  umpire.  If  the  two  arbitra- 
tors are  unable  to  agree,  each  of  them  is  to  propose  two  can- 
didates from  the  list  of  members  of  the  Permanent  Court 
"  exclusive  of  the  members  appointed  by  either  of  the  parties 
and  not  being  nationals  of  either  of  them."  From  these  four 
the  umpire  is  chosen  by  lot.  The  tribunal  of  three  thus 
formed  tries  the  case.  Normally  the  proceedings  are  to  be 
in  writing,  but  witnesses  and  experts  may  be  called  at  the 
request  of  either  side,  if  the  court  deems  their  examination 
necessary.  Each  party  is  to  be  represented  by  an  agent,  and 
oral  explanations  may  be  demanded  from  him  at  the  discre- 
tion of  the  tribunal.2 

It  will  be  noticed  that,  though  the  panel  of  possible  arbi- 
trators brought  into  existence  in  1899  is  called  the  Perma- 
nent Court  of  Arbitration,  strictly  speaking  it  is  not  a  court, 
but  only  a  list  from  which  courts  can  be  formed  as  required. 
The  Hague  Conference  of  1907  agreed  with  practical  unanim- 
ity on  the  desirability  of  creating  a  really  permanent  court 
while  retaining  the  existing  system  for  use  when  desired. 
The  new  institution  was  designed  to  bear  a  close  resemblance 
to  the  highest  courts  of  civilized  states,  and  be  strong  enough 
both  in  the  learning,  ability,  and  character  of  its  members, 
and  in  the  exalted  position  assigned  to  them,  "  to  insure  con- 
tinuity in  the  jurisprudence  of  arbitration."  Mainly  on  the 
vigorous  initiative  of  the  United  States,  backed  by  Great 

1  Convention  of  1907  for  the  Pacific  Settlement  of  International  Disputes, 
Articles  41-86.  a  Ibid.,  Articles  86-90. 


PEACE   AND  THE  MEANS   OF   PRESERVING   PEACE      583 

Britain,  Germany,  France,  and  Russia,  a  Convention  was 
drawn  up  for  the  creation  of  une  Cour  de  Justice  Arbitrale,  or 
Judicial  Arbitration  Court.  The  judges  were  to  be  ap- 
pointed for  twelve  years,  and  were  to  receive  an  annual 
salary.  Outside  their  own  country  they  were  to  enjoy  dip- 
lomatic privileges  and  immunities  in  the  exercise  of  their 
functions.  They  were  to  meet  in  session  at  the  Hague  once 
a  year,  and  were  to  appoint  every  year  a  special  delegation 
of  three  of  their  number.  These  three  were  to  perform  vari- 
ous executive  functions  and  were  rendered  competent  to 
decide  certain  less  important  cases,  and  to  settle  the  com- 
promis  in  every  case  with  the  consent  of  the  parties,  and  in 
some  cases  if  the  request  was  made  by  one  party  only. 
But  the  project  was  wrecked  on  the  rock  of  the  doctrine  of 
equality.  The  South  American  Republics,  headed  by  Brazil 
and  supported  by  a  few  other  powers,  would  be  content  with 
nothing  less  than  an  assignment  to  each  state  of  the  right 
to  nominate  a  judge.  This  was  impossible  ;  and  after  sev- 
eral unsuccessful  attempts  at  agreement  furthur  negotiation 
was  abandoned,  and  the  question  left  over  for  future  settle- 
ment.1 

On  the  motion  of  Sir  Edward  Fry,  the  first  plenipotentiary 
of  Great  Britain,  as  much  as  possible  of  the  wreckage  was 
saved.  The  articles  which  embodied  the  results  agreed  on 
were  included  among  the  annexes  to  the  Final  Act  of  the 
Conference  under  the  title  of  a  "  Draft  Convention  relative 
to  the  Creation  of  a  Judicial  Arbitration  Court,  and  a  wish 
was  inserted  in  the  Final  Act  to  the  effect  that  it  was 
advisable  to  bring  the  draft  Convention  into  force  "  as  soon 
as  an  agreement  has  been  reached  respecting  the  selection  of 
the  judges  and  the  constitution  of  the  court."  So  the  matter 
stood  till  in  October,  1909,  the  government  of  the  United 
States  sent  out  a  circular  note,  proposing  that  the  functions 
of  a  High  Court  of  Arbitral  Justice  should  be  conferred  on  the 

1  Scott,  The  Hague  Peace  Conferences,  vol.  I,  pp.  423-464  ;  Higgins,  The 
Hague  Peace  Conferences,  pp.  498-617. 


584      PEACE  AND  THE   MEANS   OF   PRESERVING  PEACE 

International  Prize  Court  provided  for  by  the  twelfth  Con- 
vention of  the  Hague  Conference  of  1907. *  The  object  of 
Mr.  Knox,  the  American  Secretary  of  State,  was  to  turn  the 
flank  of  the  difficulty  as  to  the  appointment  of  judges,  which, 
it  will  be  remembered,  was  overcome  in  connection  with  the 
International  Prize  Court  by  a  most  ingenious  device.2  That 
court  will  probably  be  called  into  existence  almost  immedi- 
ately in  consequence  of  the  happy  solution  of  many  disputed 
questions  of  prize  law  by  the  Naval  Conference  of  1908-1909  ; 
and  if  it  could  perform,  in  addition  to  the  work  originally 
assigned  to  it,  the  functions  reserved  for  the  Judicial  Arbi- 
tration Court,  a  threatening  obstacle  would  be  removed. 
There  are  obvious  objections  to  the  proposed  duplication  of 
functions,  and  it  may  be  that  they  will  influence  the  leading 
states  against  the  American  proposal.  In  that  case  the 
matter  must  in  all  probability  be  reserved  for  the  next 
Hague  Conference,  which  will  be  enlightened  by  the  discus- 
sions which  have  taken  place  since  its  predecessor  broke  up. 
Meanwhile  public  opinion  should  be  educated  to  demand  a 
settlement.  The  inflated  notions  of  a  few  states,  which  can- 
not be  ranked  among  the  leading  powers  either  in  civilization 
or  in  material  resources,  would  probably  disappear  before  its 
pressure.  If  not,  it  would  be  possible  to  create  the  desired 
tribunal  without  them.  In  no  ca§e  should  they  be  allowed 
to  prevent  so  great  an  achievement  as  the  establishment  of  a 
Supreme  Court  to  apply  the  law  of  nations  to  the  disputes 
of  nations  and  rear  a  noble  structure  of  arbitral  jurisprudence 
on  the  base  of  the  corporate  righteousness  of  the  world.8 
The  development  of  international  arbitration  since  1899 

1  Supplement  to  the  American  Journal  of  International  Law,  vol.  II,  pp. 
102-114.  2  See  §192. 

8  For  the  text  of  the  first  Hague  Convention  and  the  Draft  Convention  of 
1907  for  the  creation  of  a  Judicial  Arbitration  Court,  see  Higgins,  The  Hague 
Peace  Conferences,  pp.  100-179,  498-517 ;  Scott,  The  Hague  Peace  Confer- 
ences, vol.  ii,  82-109 ;  Whittuck,  International  Documents,  pp.  17-23,  90-116, 
220-228 ;  Supplement  to  the  American  Journal  of  International  Law,  vol.  II, 
pp.  48-81. 


PEACE  AND  THE  MEANS  CO?  PRESERVING  PEACE     585 

is  one  of  the  most  wonderful  signs  of  the  times.  Enormous 
progress  has  been  made  in  spite  of  the  failure  of  the  Hague 
Conferences  to  establish  what  was  erroneously  called  com- 
pulsory arbitration,  but  which  was  in  reality  nothing  more 
than  an  agreement  among  the  powers  that  they  would  always 
send  to  an  arbitral  tribunal  certain  classes  of  cases  strictly 
defined  in  the  agreement  itself.  Though  a  general  treaty  to 
this  effect  proved  impossible,  treaties  between  two  or  more 
states  have  been  negotiated,  literally  by  scores.  It  has  been 
computed  that  nearly  a  hundred  and  fifty  have  been  signed 
in  the  last  eleven  years.1  The  Great  Powers  of  the  world 
have  been  leaders  in  the  movement,  and  the  other  states  have 
joined  in  with  celerity  and  good-will.  As  a  rule  the  agree- 
ments are  not  confined  to  a  few  specified  cases.  Some  of 
them  contain  mutual  promises  to  refer  all  differences  to  arbi- 
tration ;  but  the  great  majority  reserve  disputes  which  con- 
cern the  vital  interests  or  the  independence  and  honor  of 
the  contracting  parties.  These  phrases  are  vague  and  in- 
definite, and  lend  themselves  to  the  purpose  of  any  statesman 
who  may  desire  to  proceed  to  extremities.  An  interest  be- 
comes vital  when  a  government  chooses  to  consider  it  as  such, 
and  there  is  no  fixed  criterion  of  national  honor.  Reserva- 
tions of  this  kind  are  probably  useful  at  present,  when  arbitra- 
tion on  a  large  scale  is  a  n,ew  thing,  and  there  has  not  been 
time  to  see  how  it  will  work.  But  we  may  hope  they  will  grad- 
ually disappear  as  arbitral  jurisprudence  develops  and  arbi- 
tral tribunals  are  formed  which  command  universal  respect. 
Meanwhile  we  may  mention  that  in  the  Treaty  of  Karlstad 
of  1905  Sweden  and  Norway,  after  agreeing  to  refer  to  the 
Hague  Tribunal  all  disputes  which  their  diplomacy  could  not 
settle,  excepting  only  those  which  concerned  their  vital  in- 
terests, left  it  to  the  court  to  decide  whether  such  interests 
were  really  concerned  in  cases  where  they  themselves  came 
to  different  conclusions  on  the  subject.  Thus  the  only  ques- 

1  For  a  list  covering  the  period  1902-1908  see  American  Journal  of  Inter- 
national Law,  vol.  ii,  pp.  824-826. 


586    PEACJE  AND  *Hta  MEANS  OF  PRESERVING  PEACE 

tions  left  beyond  the  pale  of  judicial  proceedings  were  those 
which  both  parties  regarded  as  so  fundamental  that  they  could 
not  submit  them  to  the  judgment  of  impartial  outsiders.  An- 
other significant  advance,  which  it  is  impossible  to  leave  un- 
noticed, has  occurred  in  Latin-America,  that  laboratory  of 
political  experiments  too  little  watched  in  Europe.  In  1907 
a  Central  American  Peace  Conference  was  held  at  Washing- 
ton, and  attended  by  the  plenipotentiaries  of  Costa  Rica, 
Guatemala,  Honduras,  Nicaragua,  and  Salvador,  representa- 
tives of  the  United  States  being  present  at  their  deliberations. 
Among  the  Conventions  negotiated  at  the  Conference  was 
one  for  the  establishment  of  a  Central  American  Court  of 
Justice,1  to  which  the  five  signatory  powers  bound  themselves 
"to  submit  all  controversies  or  questions  which  may  arise 
among  them,  of  whatsoever  nature,  and  no  matter  what  their 
origin  may  be,  in  case  the  respective  Departments  of  Foreign 
Affairs  should  not  have  been  able  to  reach  an  understanding." 
The  court  was  constituted  immediately,  and  was  seized  of  its 
first  case  in  the  summer  of  1908.  Possibly  it  may  become  a 
permanent  institution  under  the  fostering  care  of  the  United 
States ;  but  whatever  its  ultimate  fate,  the  fact  that  it  was 
created  is  both  interesting  and  important.  It  affords  addi- 
tional evidence  of  the  zeal  for  international  arbitration  which 
has  distinguished  the  great  American  Republic  during  the 
whole  course  of  its  history.  Great  Britain  fully  shares  this 
honorable  attachment  to  a  noble  cause.  In  times  when  ar- 
bitration was  not  so  popular  as  it  is  to-day  the  two  countries 
decided  some  of  the  most  dangerous  of  their  quarrels  by  its 
means.  They  are  now  bound  by  a  treaty  of  arbitration  con- 
cluded in  1908 ;  and  at  the  present  moment  (December, 
1911),  a  more  comprehensive  treaty  which  provides  "  means 
for  the  peaceful  solution  of  all  questions  of  difference"  is 
awaiting  ratification.2  It  was  negotiated  in  1811,  and  some 
other  nations  have  already  shown  a  disposition  to  enter  into 
similar  agreements. 

1  Supplement  to  the  American  Journal  of  International  Law,  vol.  II,  pp. 
231-243.  a  Ibid.,  vol.  V,  pp.  253-267. 


CHAPTER  I 

THE  NATURE  AND   HISTORY  OF  NEUTRALITY 

§    222 

NEUTRALITY  may  be  defined  as  The  condition  of  those  states 
which  in  time  of  war  take  no  part  in  the  contest,  but  „ 

f  f  The  definition  of 

continue  pacific  intercourse  with  the  belligerents.  Neutrality.  The 
The  Law  of  Neutrality  contains  some  of  the  which  have  gone 
oldest  and  some  of  the  youngest  chapters  of  our  to  form  lta  law' 
science.  We  have  in  it  rules  that  have  been  observed  for 
ages,  and  rules  that  have  been  developed  in  our  own  time. 
Some  of  its  customs  have  gained  authority  from  long  usage, 
and  some  are  even  now  shifting  and  uncertain.  It  sets 
forth  principles  that  have  been  consecrated  by  general 
assent,  and  principles  that  are  still  warmly  supported  and 
fiercely  decried.  High  ethical  considerations  have  moulded 
some  parts  of  it,  while  others  have  arisen  from  the  conflict 
of  opposing  self-interests.  Starting  from  small  beginnings 
it  has  grown  with  the  growth  of  the  idea  that  peace  and  not 
war  is  the  normal  condition  of  mankind,  till  now  it  forms  the 
most  important,  if  not  the  largest,  title  of  the  international 
code.  He  who  reads  its  pages  aright  will  find  therein  the  proof 
that,  by  making  war  difficult  and  neutrality  easy,  nations 
may  be  led  to  take  that  "  true  road  to  a  perpetual  peace  "  1 
which  all  lovers  of  humanity  desire  to  see  them  tread. 

Neutrality  is  in  a  sense  the  continuation  of  a  previously 

1  Whewell,  Elements  of  Morality  and  Polity,  p.  611. 
687 


588          THE  NATURE!  AND  HISTORY  OF  NEUTRALITY 

existing  state.  By  going  to  war  belligerents  alter  their 
condition  ;  but  the  powers  who  choose  to  be  neutral  have 
made  no  change.  It  might  be  thought,  therefore,  that  their 
international  rights  were  unchanged  ;  and  so  far  is  this  the 
case  that  the  legal  presumption  is  in  favor  of  identity  and 
continuity.  Unless  proof  to  the  contrary  is  shown,  neutral 
states  and  their  subjects  are  free  to  do  in  time  of  war 
between  other  states  what  they  were  free  to  do  in  time  of 
universal  peace.  But  International  Law  has  affixed  to  the 
state  of  neutrality  certain  rights  and  obligations  which  do  not 
exist  when  there  is  no  war.  For  instance,  neutral  govern- 
ments may  regulate  the  delivery  of  certain  articles  to  bellig- 
erent cruisers  enjoying  the  hospitality  of  their  ports.  The 
supply  of  certain  other  articles  they  are  bound  to  prohibit 
altogether.  They  have  the  right  to  enforce  respect  for  the 
neutrality  of  their  waters,  and  they  are  under  an  obligation 
not  to  allow  their  territory  to  be  used  for  the  fitting  out  or 
recruitment  of  armed  expeditions  in  favor  of  either  bellig- 
erent. Similarly  the  commerce  of  neutral  individuals  with 
the  belligerents  is  subject  to  certain  restrictions  which  do 
not  exist  in  time  of  peace,  and  if  they  are  disregarded  the 
neutral  trader  is  liable  to  severe  penalties  at  the  hand  of  the 
belligerent  who  suffers  by  his  operations.  These  are  but 
examples  and  indications  of  the  altered  legal  conditions 
brought  about  by  war  even  in  the  case  of  those  who  take  no 
part  in  it.  The  whole  Law  of  Neutrality  is  nothing  more 
than  the  setting  forth  of  these  changes. 

§   223. 

The  nations  of  classical  antiquity  had  no  names  to  signify 
what  we  mean  by  neutrality.  The  Romans  spoke  of  neu- 
The  history  of  trals  as  medii,  amid,  or  pacati;  and  their  vocab- 
Neutraiity.  ulary  remained  in  use  all  through  the  Middle 

Ages.     Grotius  in  the  one  short  chapter  which  he  gives  to 
the  matter  refers  to  medii,1  and  Bynkershoek  is  obliged  to 
1  De  Jure  Belli  ac  Pads,  bk.  Ill,  ch.  xvii,  3. 


THE  NATURE  AND   HISTORY  OF  NEUTRALITY          589 

coin  the  awkward  phrase  non-hostes  when  he  wishes  to  be 
exact. l  In  the  seventeenth  century  the  terms  neutral  and 
neutrality  occur  in  a  Latin  and  a  German  dress  as  well  as  in 
English,2  but  they  had  to  be  adopted  into  the  French  lan- 
guage before  their  use  became  general.  Vattel,  writing  in 
1758,  spoke  of  neutre  and  neutrality ;8  and  in  the  following 
year  Hiibner  published  his  De  la  Saisie  des  Bdtements  Neutres. 
From  that  time  the  words  became  technical  terms,  and  were 
used  by  all  writers  and  speakers  who  had  occasion  to  refer 
to  the  subject. 

It  might  be  inferred  from  the  absence  of  a  proper  vocabu- 
lary of  neutrality  in  the  works  of  the  early  publicists  that 
the  thing  itself  was  either  unknown  to  them  entirely  or 
existed  in  a  very  rudimentary  condition.  The  truth  is  that 
the  Law  of  Neutrality  is  a  comparatively  modern  growth,  in 
so  far  as  it  deals  with  the  mutual  rights  and  duties  of  bellig- 
erent and  neutral  states.  This  part  of  it  has  arisen  during 
the  last  three  centuries  from  a  recognition,  dim  at  first  but 
growing  clearer  and  clearer  as  time  went  on,  of  the  two 
principles  of  absolute  impartiality  on  the  part  of  neutrals 
and  absolute  respect  for  neutral  sovereignty  on  the  part  of 
belligerents.  But  in  so  far  as  it  deals  with  the  right  of 
belligerent  states  to  put  restraint  on  the  commerce  of  neutral 
individuals,  it  is  at  least  as  old  as  the  maritime  codes  of  the 
Middle  Ages,  and  in  some  of  its  provisions  traces  can  be 
found  of  the  sea  laws  of  the  Greeks  and  the  Romans.  Op- 
posing self-interests  are  the  operative  forces  which  have 
determined  the  character  of  this  part  of  the  Law  of  Neu- 
trality. At  first  the  powers  at  war  were  able  to  impose 
hard  conditions  upon  peaceful  merchants.  It  was  a  favor 
for  them  to  be  allowed  to  trade  at  all,  and  they  were  not  per- 
mitted to  do  anything  that  would  impede  the  operations  of 

1  Qucestiones  Juris  Publici,  bk.  I,  ch.  9. 

2  Holland,  Article  on  the  International  Position  of  the  Suez  Canal  in  the 
Fortnightly  Review  for  July,  1883. 

8  Droit  des  Gens,  bk.  Ill,  ch.  vii. 


596  THE  NATURE   AND   HISTORY   OF   NEUTRALITY 

the  belligerents.  Then,  as  commerce  became  stronger,  con- 
cession after  concession  was  won  for  neutral  traders  ;  and 
neutral  states  made  common  cause  to  protect  their  subjects 
from  molestations  they  deemed  unwarrantable.  The  nine- 
teenth century  saw  the  removal  of  many  of  the  remaining 
shackles,  and  the  process  is  still  continuing.  Its  nature 
will  be  seen  when  we  come  to  speak  in  detail  of  the 
rules  of  maritime  capture  as  they  affect  neutral  commerce. 
Meanwhile  we  will  briefly  trace  the  growth  of  a  Law  of 
Neutrality  as  between  the  states  concerned  in  the  war  and 
the  states  which  hold  aloof  from  it. 

Grotius,  like  Machiavelli  and  other  writers  equally  opposed 
to  him  in  principles  and  modes  of  thought,  assumes  that  the 
condition  of  neutrality  is  difficult  and  dangerous.  He  makes 
the  neutral  state  into  the  judge  of  the  justice  or  injustice 
of  the  war,  and  bids  it  "  do  nothing  which  may  strengthen 
the  side  which  has  the  worse  cause,  or  which  may  impede 
the  motions  of  him  who  is  carrying  on  a  just  war."  Only 
in  "  a  doubtful  case "  is  it  exhorted  "  to  act  alike  to  both 
sides."1  Where  modern  International  Law  insists  on  impar- 
tiality of  conduct  Grotius  makes  inequality  of  treatment  a 
duty.  He  would  determine  a  neutral's  action  by  its  views 
as  to  the  rights  and  wrongs  of  the  quarrel,  whereas  the 
modern  doctrine  is  that  the  opinions  and  sympathies  of  non- 
combatant  powers  should  have  no  effect  on  their  behavior. 
They  are  bound  to  hold  the  balance  equal  between  the  parties 
to  the  conflict,  however  strongly  they  may  desire  the  success 
of  one  of  them  and  the  defeat  of  the  other.  Neutral  duties 
towards  belligerents  have  grown  enormously  since  the  time 
of  Grotius,  and  their  development  has  not  taken  place  along 
the  exact  lines  laid  down  by  him.  A  similar  growth  is 
observable  in  the  corresponding  department  of  belligerent 
duties  towards  neutrals.  We  must  be  content  with  a  very 
brief  survey  of  both  processes. 

Up  to  the  middle  of  the  seventeenth  century  it  was  neces- 

1  De  Jure  Belli  ac  Pads,  bk  HI,  ch.  xvii,  3. 


THE  NATURE  AND  HISTORY  OF  NEUTRALITY       591 

sary  to  bind  states  to  neutrality  by  special  treaty  stipula- 
tions, in  the  absence  of  which  a  so-called  neutral  allowed 
one  or  the  other  of  the  belligerents  to  levy  troops  and  fit 
out  ships  within  its  dominions,  and  sometimes  furnished  him 
with  stores  and  munitions  of  war  at  the  public  expense.1 
After  that  time  it  began  to  be  admitted  that  neutrality  in- 
volved abstinence  from  open  aid  or  encouragement  to  either 
belligerent.  But  an  exception  was  made  in  the  case  of 
solemn  promises  of  assistance  made  before  the  war.  Grotius 
had  gone  so  far  as  to  declare  that,  even  when  two  states  were 
bound  by  a  league,  one  of  them  might  defend  a  third  power 
from  the  attack  of  its  ally  without  a  general  breach  of  the 
peace  between  them.2  But  the  accepted  doctrine  of  the 
eighteenth  century  was  not  quite  so  broad.  It  laid  down 
in  the  words  of  Vattel  that  "  when  a  sovereign  furnishes  the 
succor  due  in  virtue  of  a  former  defensive  alliance,  he  does 
not  associate  himself  in  the  war.  Therefore  he  may  fulfil 
his  engagements  and  yet  preserve  an  exact  neutrality." 
The  Swiss  publicist  goes  on  to  say  that  "  of  this  Europe  affords 
frequent  instances,"  and  it  is  easy  to  collect  a  number  of 
cases  more  than  sufficient  to  make  good  his  assertion.  He 
himself  refers  to  the  action  of  the  Dutch,  who  in  the  war  of 
the  Austrian  Succession  furnished  Maria  Theresa  with  sub- 
sidies and  troops  for  use  against  France,  with  whom  they 
remained  at  peace  ;  and  as  this  assistance  was  given  under 
the  provisions  of  a  treaty  made  before  the  war  and  not  in  con- 
templation of  it,  the  French  Government  did  not  complain 
until  the  forces  of  the  United  Provinces  threatened  its  Alsa- 
tian frontier.3  When  such  a  definite  and  important  state  act 
as  the  despatch  of  fleets  and  armies  was  not  held  to  be  incon- 
sistent with  neutrality,  we  may  well  imagine  that  the  lesser 
concessions  of  permission  to  levy  recruits  or  purchase  and 
equip  vessels  of  war  were  deemed  perfectly  innocent.  Very 

1  Hall,  Eights  and  Duties  of  Neutrals,  pt.  II,  ch.  i. 

2  De  Jure  Belli  ac  Pads,  bk.  II,  ch.  xvi,  13. 
8  Droit  des  Gens,  bk.  Ill,  §§  101,  105. 


592          THE  NATURE   AND   HISTORY   OF  NEUTRALITY 

often  indeed  leave  was  taken  without  the  ceremony  of  ask- 
ing for  it,  as,  for  instance,  by  Frederick  the  Great,  who  in 
the  Seven  Years'  War  cared  not  where  he  obtained  his  sol- 
diers as  long  as  the  ranks  were  full.  But  towards  the  close 
of  the  century  moral  ideas  outran  practice  and  writers  who 
were  abreast  of  the  best  opinion  of  their  day  began  to  con- 
demn the  license  of  which  we  have  been  speaking.  Thus 
G.  F.  de  Martens  maintained  that  a  state  which  sent  troops 
to  assist  one  of  the  belligerents  could  not  in  strictness  de- 
mand to  be  looked  upon  as  a  neutral,  though  he  allows  that 
it  would  be  generally  regarded  as  such  when  the  treaty  under 
which  it  gave  the  aid  was  made  before  the  war.1  The  year  in 
which  he  wrote  witnessed  the  last  example  of  the  practice 
he  condemned.  In  1788  Denmark  furnished  limited  succor 
to  Russia,  then  at  war  with  Sweden.  Though  she  was 
bound  by  previously  existing  treaties  to  do  so,  her  conduct 
was  made  the  subject  of  protest  by  the  power  which  suf- 
fered in  consequence  of  it,  and  had  not  the  war  been  brought 
to  a  speedy  termination,  she  would  probably  have  been  made 
a  party  to  it.2 

When  neutrals  were  allowed  to  ignore  in  act  the  principle 
of  impartiality  they  loudly  asserted  in  words,  it  is  not  to  be 
wondered  at  that  the  obligation  to  respect  the  sovereignty 
and  territorial  integrity  of  neutral  states  sat  lightly  on 
belligerent  powers.  The  elementary  duty  of  refraining  from 
hostile  operations  in  neutral  territory  was  frequently  vio- 
lated. Grotius  admits  that  many  liberties  were  often  taken 
with  those  who  refrained  from  engaging  in  a  war,  and  advises 
them  to  make  a  convention  with  each  of  the  belligerents  so 
that  they  may  be  allowed  with  the  good-will  of  both  to  ab- 
stain from  hostilities.8  Indeed,  there  seems  to  have  been  an 
idea  abroad  during  his  time  that  a  neutral  state  must  be 

1  Precis  du  Droit  des  Gens  Moderns,  §§  264,  265. 

2  Wheaton,   International  Law,  §  424 ;    Phillimore,  International  Law, 
pt.  IX,  ch.  ix. 

8  De  Jure  Belli  ac  Pads,  bk.  Ill,  ch  xvii,  1  and  3. 


THE  NATURE   AND   HISTORY   OF   NEUTRALITY          593 

either  weak  or  mean-spirited.  In  the  first  case  its  territory 
might  be  violated  with  safety,  and  in  the  second  it  was 
deemed  to  have  received  a  useful  lesson  when  a  powerful 
neighbor  made  it  suffer  in  spite  of  its  determination  to  incur 
no  risks.  Certain  it  is  that  violations  of  neutral  territory 
on  the  part  of  belligerents  were  of  constant  occurrence.1  In 
1639,  for  instance,  a  Spanish  fleet  was  destroyed  in  the 
Downs,  which  are  English  territorial  waters,  by  the  Dutch 
Admiral  Tromp,  after  negotiations  which  did  little  honor  to 
the  good  faith  of  Charles  I,2  and  in  1665  the  English  re- 
turned the  compliment  by  attempting  to  seize  a  Dutch  squad- 
ron in  the  neutral  harbor  of  Bergen.  It  is  generally  alleged, 
and  probably  with  truth,  that  a  considerable  improvement 
took  place  in  the  next  century.  But  in  1737  Bynkershoek 
maintained  that  it  was  lawful  for  a  belligerent  to  pursue  an 
enemy's  vessel  into  neutral  waters,  and  complete  the  capture 
there  dumfervet  opus.3  Fortunately  this  rule  has  never  won 
general  acceptance,  and  it  may  be  considered  as  bad  in  law, 
though  it  has  sometimes  been  quoted  to  justify  high-handed 
action  on  the  part  of  powerful  belligerents. 

In  matters  connected  with  neutrality  state  action  was 
halting  and  uncertain  till  the  close  of  the  eighteenth  cen- 
tury. Lip  service  was  rendered  to  the  two  great  principles 
of  impartiality  on  the  part  of  neutral  powers  and  respect  for 
neutral  sovereignty  on  the  part  of  belligerents,  but  both  of 
them  were  frequently  ignored  in  practice.  Even  when  gov- 
ernments acted  towards  one  another  with  perfect  loyalty,  they 
made  little  attempt  to  restrain  the  vagaries  of  their  subjects, 
who  might  with  impunity  give  direct  assistance  to  either 
side  and  use  neutral  territory  as  a  base  of  warlike  operations. 
This  unsatisfactory  condition  of  affairs  was  permanently 
improved  owing  to  the  action  of  the  United  States  in  the 
war  which  broke  out  in  1793  between  Great  Britain  and 


1  Hall,  Rights  and  Ditties  of  Neutrals,  pp.  33-35. 

2  Gardener,  History  of  England,  vol.  IX,  pp.  60-68. 
8  Qutestiones  Juris  Publici,  bk.  I,  ch.  8. 


594          THE  NATURE   AND   HISTORY   OP   NEUTRALITY 

Revolutionary  France.  M.  Genet,  the  French  minister  ac- 
credited to  the  American  Republic,  caused  French  priva- 
teers to  be  fitted  out  in  American  ports  and  despatched  there- 
from to  prey  upon  British  commerce.  He  also  set  up  Prize 
Courts  in  connection  with  French  consulates  in  the  United 
States  ;  and  these  courts  tried  and  condemned  British  vessels 
which  had  been  captured  by  French  cruisers  and  brought 
into  American  waters.  Great  Britain  complained  of  these 
acts  as  injurious  to  her  own  commerce  as  well  as  derogatory 
to  the  sovereignty  of  the  United  States  ;  and  Washington's 
administration  took  the  ground  that  by  the  law  of  nations 
all  judicial  functions  within  a  country  must  be  exercised  by 
its  own  courts  acting  under  the  authority  of  its  government. 
Jefferson,  therefore,  as  Secretary  of  State,  wrote  to  M.  Genet 
on  June  5,  1793,  that  "  it  is  the  right  of  every  nation  to 
prohibit  acts  of  sovereignty  from  being  exercised  by  any 
other  within  its  limits,  and  the  duty  of  a  neutral  nation  to 
prohibit  such  as  would  injure  one  of  the  warring  powers."1 
He  had  previously  admitted  to  Great  Britain  the  obligation 
of  the  United  States  to  prevent  the  commissioning,  equip- 
ping, and  manning  of  vessels  in  her  ports  to  cruise  against 
either  belligerent.  Washington  did  his  utmost,  in  spite  of 
a  hostile  public  opinion  and  a  defective  condition  of  the 
law,  to  enforce  respect  for  the  principles  his  government  had 
laid  down.2  He  ordered  the  collectors  of  customs  throughout 
the  Union  to  prevent  the  original  arming  and  equipping  of 
cruisers  destined  for  belligerent  service  and  the  subsequent 
equipment  of  vessels  solely  adapted  to  warlike  uses.  No 
enlistments  were  to  be  permitted  on  board  a  belligerent 
vessel  enjoying  the  hospitality  of  American  ports,  unless  the 
recruits  were  subjects  of  the  power  which  owned  the  ship, 
and  not  inhabitants  of  the  United  States.  M.  Genet  not 
only  paid  no  heed  to  remonstrances,  but  endeavored  to  stir 
up  opposition  to  the  administration.  His  recall  was  there- 
fore demanded  ;  and  the  first  great  triumph  of  the  American 
i  Wharton,  International  Law  of  the  United  States,  f  398.  2See  §§  126,  188, 


THE  NATURE  AND   HISTORY  OF  NEUTRALITY          595 

Government  in  its  policy  of  strict  and  honest  neutrality  was 
won  when  the  French  Republic  compelled  its  minister  to 
return  in  disgrace,  and  instructed  his  successor  to  disarm 
the  privateers  which  had  been  fitted  out  in  the  United  States 
and  remove  the  consuls  who  had  taken  part  in  the  proceed- 
ings of  the  so-called  Consular  Prize  Courts.  In  1794  Con- 
gress forbade  American  citizens  to  enlist  in  the  army  or  navy 
of  a  foreign  state,  and  prohibited  other  acts  in  defiance  of 
the  neutrality  of  the  United  States.  It  also  gave  the  Presi- 
dent the  right  to  use  the  army  and  navy  to  prevent  the 
departure  from  American  jurisdiction  of  vessels  offending 
against  the  Act.  In  1818  the  whole  law  on  the  subject  of 
neutrality  was  codified  and  embodied  in  the  great  Foreign 
Enlistment  Act,  which  is  still  in  force.  By  this  statute  citi- 
zens of  the  United  States  are  prohibited  from  serving  in  war 
against  any  foreign  state  with  which  the  United  States  are 
at  peace  ;  and  a  variety  of  acts  are  made  criminal,  among 
the  chief  of  which  are  fitting  out  or  arming  any  vessel  within 
American  jurisdiction  with  the  intent  that  it  shall  be  em- 
ployed as  a  belligerent  cruiser  in  a  war  in  which  the  United 
States  is  neutral,  increasing  within  the  United  States  the 
warlike  force  of  any  cruiser  so  employed,  and  setting  on  foot 
in  the  territory  or  territorial  waters  of  the  Union  armed 
expeditions  against  any  country  with  which  the  United  States 
is  at  peace.1 

These  proceedings  of  the  United  States  from  1793  to  1818 
mark  an  era  in  the  development  of  the  rights  and  obligations 
of  neutral  powers.  In  1819  Great  Britain  adopted  a  neu- 
trality statute  based  avowedly  upon  the  act  passed  by  Con- 
gress in  the  previous  year;  and  in  1870,  after  her  experience 
of  the  weakness  of  her  law  in  dealing  with  the  Alabama  and 
other  Confederate  cruisers,  she  strengthened  it  by  a  new 
and  more  stringent  Foreign  Enlistment  Act,  which  in  several 

1  For  an  account  of  the  efforts  of  Washington's  government  to  preserve  an 
honest  neutrality,  see  Wheaton,  International  Law  (Dana's  ed.),  note  215, 
and  Moore,  International  Law  Digest,  vol.  VII,  pp.  886-894, 


596          THE  NATURE  AND   HISTOKY   OF   NEUTRALITY 

particulars  goes  beyond  the  American  law  in  severity.  The 
neutrality  regulations  of  other  civilized  states  are  drawn  on 
similar  lines,  though  they  differ  considerably  from  one  an- 
other in  their  prohibitions  and  permissions.  It  is  necessary 
in  view  of  certain  modern  proposals  to  remark  that  the  obli- 
gations placed  on  neutrals  must  not  be  made  too  burdensome, 
lest  they  should  find  war  less  irksome  than  peace.  When 
we  come  to  consider  in  detail  the  duties  of  neutral  govern- 
ments, we  shall  be  in  a  position  to  appreciate  the  necessity 
of  this  warning. 

§224 

The  older  text-writers  divided  neutrality  into  two  kinds. 
The  first,  called  perfect  neutrality,  was  simply  that  which 
Neutrality  and  we  now  understand  by  the  term  neutrality.  It 
?hetcorrzeaci°mean-  was  the  condition  of  states  who  took  no  part  in 
ing  of  the  latter,  the  contest,  but  remained  on  friendly  terms 
with  both  sides.  The  second,  called  imperfect  or  qualified 
neutrality,  occurred  when  a  neutral  state  gave  either  active 
aid  or  special  privileges  to  one  of  the  belligerents  under  the 
provisions  of  a  treaty  made  before  the  war  and  not  in 
anticipation  of  it.  It  is  hardly  necessary  to  say,  after  the 
historical  view  we  have  just  concluded,  that  the  latter  is  no 
longer  recognized.  Even  the  benevolent  neutrality  which 
we  sometimes  hear  of  is  an  abuse,  if  it  means  allowing  to  one 
side  privileges  denied  to  the  other. 

But  though  neutrality  is  legally  one  and  the  same  in  all 
cases  it  must  be  carefully  distinguished  from  neutralization. 
In  the  former  there  are  the  two  elements  of  abstention  from 
acts  of  war,  and  freedom  to  abstain  or  not  to  abstain  at 
pleasure.  In  the  latter  the  first  element  remains  the  same ; 
but  instead  of  the  second  we  find  either  an  obligation  not  to 
fight  except  in  the  strictest  self-defence,  or  an  obligation  to 
abstain  from  warlike  use  of  certain  places  and  things  which 
have  had  the  neutral  character  stamped  on  them  by  inter- 
national agreement.  We  see,  therefore,  that  enforced  neu- 


THE  NATURE   AND   HISTORY   OF  NEUTRALITY          597 

trality  is  the  essence  of  neutralization.  This  condition  has 
been  imposed  on  states,  on  provinces,  and  on  waterways,  and 
it  effects  so  great  a  change  in  their  legal  position  that  in 
strictness  it  cannot  be  made  without  the  consent  of  all  the 
parties  affected  thereby.  A  power  is  incapable  of  neutralizing 
its  own  territory  by  its  own  mere  declaration,  because  the 
rights  and  duties  of  other  powers,  as  conferred  and  im- 
posed by  International  Law,  would  be  considerably  altered 
thereby.  Similarly  two  or  three  powers  cannot  neutralize 
the  territory  of  one  of  their  number;  for  they  have  no 
authority  to  legislate  for  the  civilized  world,  and  warn  other 
powers  off  a  spot  where  belligerent  operations  could  previously 
be  carried  on  by  all  who  chose  to  go  to  war  with  the  state 
which  owned  it.  The  common  law  of  nations  cannot  be 
overridden  by  one  of  the  communities  subject  to  it,  or  by  a 
small  group  of  them.  A  change  of  status,  if  it  is  to  be  inter- 
nationally valid,  must  be  the  result  of  general  agreement. 
At  the  very  least  it  must  be  accepted  by  all  the  important 
states  concerned  in  the  matter,  and  it  should  be  remembered 
that  their  consent  can  be  given  by  tacit  acquiescence  as  well 
as  by  formed  stipulations. 

Unfortunately  the  word  neutralization  and  kindred  terms 
have  occasionally  been  used  in  a  loose  and  inaccurate  sense 
in  treaties  and  other  international  documents.  Rivers  that 
have  been  opened  to  the  peaceful  commerce  of  the  world, 
straits  and  seas  on  the  shores  of  which  each  of  two  con- 
tracting parties  has  bound  itself  not  to  erect  fortifications, 
have  been  spoken  of  as  neutralized ;  while  an  arrangement 
whereby  a  powerful  state  has  undertaken  to  assist  a  weak 
neighbor  in  defending  from  attack  an  important  waterway 
has  been  declared  to  amount  to  a  valid  and  complete  neutral- 
ization.1 Precision  of  statement  and  cogency  of  reasoning 
are  impossible  unless  the  words  used  have  a  clear  and 
recognized  meaning  attached  to  them.  If  the  terms  and 

1  For  instances  see  Lawrence,  Essays  on  International  Law  (2d  ed.),  pp. 
142-156. 


598 

phrases  we  are  considering  were  never  written  or  spoken 
save  in  the  sense  that  our  analysis  shows  to  belong  to  them, 
more  than  one  international  dispute  would  disappear  for 
lack  of  material  to  sustain  it.  It  is  fortunate  that  when  in 
1817  the  United  States  and  Great  Britain  restricted  by 
mutual  agreement  the  naval  force  each  was  to  maintain  on 
the  Great  Lakes 1  they  did  not  attempt  to  dignify  a  small 
and  sensible  restraint  on  their  sovereign  rights  with  the 
high-sounding  name  of  neutralization.  It  would  have  been 
better  if  the  same  reticence  had  been  observed  by  other  powers 
in  similar  cases. 

§   225 

The  chief  existing  instances  of  undoubted  neutralization 
give  the  support  of  history  and  practice  to  the  doctrines  we 
Neutralized  have  arrived  at  by  reasoning  from  general  prin- 

states-  ciples.     We  will  begin  with  a  consideration  of 

the  case  of  neutralized  states.  There  are  at  the  present  time 
three  European  powers  which  occupy  a  position  of  guaran- 
teed and  permanent  neutrality,  but  on  condition  that  they 
refrain  from  all  belligerent  operations  save  such  as  are  nec- 
essary to  protect  them  from  actual  or  threatened  attack.  The 
first  of  these  in  point  of  time  was  Switzerland.  The  Swiss 
Confederation  succeeded  in  maintaining  both  its  independ- 
ence and  its  neutrality  from  the  Peace  of  Westphalia  to  the 
French  Revolution ;  but  in  the  stormy  times  which  followed 
it  was  torn  by  internal  dissensions  and  its  territory  was 
frequently  invaded  by  French,  Austrian,  and  Russian  armies. 
After  the  final  overthrow  of  Napoleon  a  declaration  was 
signed  at  Paris  on  Nov.  20,  1815,  by  the  representatives  of 
Great  Britain,  Austria,  France,  Prussia,  and  Russia,  whereby 
they  formally  recognized  the  perpetual  neutrality  of  Switzer- 
land, and  guaranteed  the  inviolability  of  its  territory  within 
the  limits  established  by  the  Congress  of  Vienna.2  The 

1  Treaties  of  the  United  States,  pp.  413-416. 

2  Wheaton,  History  of  the  Law  of  Nations,  pt.  IV,  §  17. 


THE  NATURE  AND   HISTORY   OF   NEUTRALITY          599 

agreement  of  the  five  Great  Powers  of  Europe  was  held  to 
be  sufficient  to  elevate  the  neutralization  of  Switzerland  into 
a  principle  of  the  public  law  of  Europe,  and  its  sanctity  is 
none  the  less  real  because  the  Swiss  people  have  shown 
themselves  resolved  to  defend  the  integrity  of  their  frontiers 
by  a  well-armed  and  organized  national  levy.  No  case  of 
violation  of  their  territory  has  occurred  since  1815.  The 
political  advantages  of  its  isolation  from  warlike  operations 
are  so  manifest,  that  none  of  the  neighboring  states  is  likely 
to  venture  upon  invasion,  with  the  certainty  before  it  of 
encountering  a  desperate  resistance  from  the  inhabitants 
and  bringing  about  the  armed  intervention  of  some  of  the 
guaranteeing  powers. 

The  case  of  Belgium  must  be  considered  next.  It  was 
united  with  Holland  by  the  Congress  of  Vienna,  and  the  two 
together  were  known  as  the  Kingdom  of  the  Netherlands. 
But  in  1830  the  Belgians  rose  in  revolt  against  the  House  of 
Orange.  The  King  of  the  Netherlands  requested  the  media- 
tion of  the  Great  Powers  of  Europe ;  but  to  his  disgust  they 
insisted  upon  intervention.  In  a  long  series  of  negotiations, 
diversified  by  a  French  attack  on  the  citadel  of  Antwerp 
and  an  English  blockade  of  the  Scheldt,  the  Belgium  fron- 
tiers were  defined,  and  Belgium  was  erected  into  a  separate 
kingdom  whose  perpetual  neutrality  was  guaranteed  by  the 
powers.  These  arrangements  were  embodied  in  a  great 
international  treaty  signed  in  November,  1831 ;  but  Belgium 
and  Holland  did  not  come  to  terms  till  April,  1839.  Their 
agreement  was  confirmed  by  the  five  Great  Powers  in  another 
treaty  of  the  same  date,  which  repeated  the  guarantee  of  the 
independence  and  neutrality  of  the  Belgian  Kingdom,  and 
bound  it  to  refrain  from  interference  in  the  armed  struggles 
of  other  states.1  This  obligation  it  has  loyally  fufilled  ;  and 
though  intrigues  against  its  independence  have  not  been 

1  Wheaton,  History  of  the  Law  of  Nations,  pt.  IV,  §  26  ;  Fyffe,  Modern 
Europe,  vol.  II,  pp.  381-390  ;  Hertslet,  Map  of  Europe  by  Treaty,  vol.  II, 
pp.  859-884,  996-998.' 


600          THE  NATURE  AND  HISTORY   OF  NEUTRALITY 

wanting,  it  has  hitherto  been  preserved  from  attack.  There 
can  be  little  doubt  that  one  or  more  of  the  guaranteeing 
powers  would  assist  it,  should  its  integrity  be  exposed  to 
serious  danger  at  any  future  time. 

The  strictness  with  which  its  duty  of  taking  no  part  in 
the  quarrels  of  other  powers  has  been  construed  was  very 
well  illustrated  in  the  course  of  the  negotiations  which 
terminated  in  the  neutralization  of  Luxemburg,  the  last  of 
the  three  European  states  which  have  been  placed  in  a  con- 
dition of  permanent  and  guaranteed  neutrality.  In  the 
general  settlement  of  Europe  after  the  downfall  of  the  first 
Napoleon,  the  Grand  Duchy  had  been  added  to  the  domin- 
ions of  the  King  of  Holland  as  a  separate  and  independent 
state,  and  made  into  a  member  of  the  German  Confederation. 
As  such  its  capital  was  garrisoned  by  Prussian  troops,  who 
remained  after  the  disruption  of  the  Confederation  in  1866. 
France  objected  to  their  presence,  and  threatened  war  if  they 
were  not  removed.  The  question  was  settled  by  a  Confer- 
ence, which  met  at  London  in  May,  1867,  and  placed  the 
Grand  Duchy  under  the  collective  guarantee  of  the  powers 
as  a  permanently  neutralized  territory.  Prussia  was  to  with- 
draw its  soldiers,  and  the  fortifications  of  the  city  were  to 
be  demolished.  Belgium,  as  one  of  the  states  immediately 
concerned,  took  part  in  the  Conference  and  assented  to  the 
conclusions  arrived  at  by  the  assembled  plenipotentiaries, 
but  did  not  sign  the  treaty  in  which  they  were. embodied. 
It  contained  a  guarantee  of  the  neutrality  of  Luxemburg ; 
and  Belgium,  being  itself  a  permanently  neutralized  state, 
was  regarded  as  incapable  of  entering  into  an  engagement 
which  might  involve  her  in  war  for  other  purposes  than 
those  of  the  strictest  self-defence.1  This  important  indica- 
tion of  the  nature  and  extent  of  the  obligations  attached  to 
a  neutralized  state  by  the  public  law  of  Europe  renders  the 
Conference  of  London  memorable  from  the  point  of  view  of 

1  Fyffe,  Modern  Europe,  vol.  Ill,  p.  402 ;  Hertslet,  Map  of  Europe  by 
Treaty,  vol.  Ill,  p.  1803.  • 


THE  NATURE  AND   HISTORY  OF   NEUTRALITY          601 

the  jurist.  But  it  also  possesses  a  further  title  to  his  regard. 
The  five  Great  Powers  agreed  to  invite  Italy  to  join  them  in 
sending  representatives  to  deal  with  the  matters  under  con- 
sideration. Their  invitation  was  held  to  raise  her  to  the 
rank  of  a  Great  Power.  She  has  acted  as  such  on  all  subse- 
quent occasions  ;  and  her  elevation  seems  to  show  that  among 
the  functions  of  primacy  performed  by  the  Great  Powers1 
must  be  reckoned  the  addition  of  fresh  states  to  their  number 
by  a  process  of  co-option.  The  political  order  established 
by  the  Conference  of  1867  has  remained  in  existence  up  to 
the  present  time.  On  the  death  of  the  King  of  Holland 
in  1890,  and  the  accession  of  his  daughter  to  the  Dutch 
throne,  Luxemburg  passed  under  the  rule  of  Duke  Adolph 
of  Nassau,  since  by  its  constitution  a  female  was  incapable 
of  reigning.  But  the  dissolution  of  what  was  a  purely  per- 
sonal tie  has  made  no  difference  in  the  neutralized  condition 
of  the  little  state.  Its  population  sympathized  largely  with 
the  French  in  the  war  of  1870,  and  were  accused  by  Prince 
Bismarck  of  aiding  them  in  various  ways  inconsistent  with 
true  neutrality.  His  threat  to  disregard  the  integrity  of  the 
Duchy  was,  however,  never  carried  into  effect.  Probably 
it  fulfilled  its  purpose  by  calling  the  attention  of  the  authori- 
ties and  the  people  to  the  tenure  on  which  they  held  their 
exceptional  position.2 

§  226 

We  have  now  to  deal  with  neutralized  provinces,  by  which 
phrase  we  mean  neutralized  portions  of  states  that  are  free  to 
make  war  at  pleasure.  The  most  conspicuous  „ 

*  _  .  Neutralized  por- 

instance  is  that  of  Savoy,  which  was  neutralized  uonsofunneutrai- 
in  1815  by  the  treaties  of  Vienna  and   Paris, 
and  made  to  "form  a  part  of  the  neutrality  of  Switzerland." 
Savoy  then  belonged  to  Sardinia,  and  it  was  stipulated  that 
if  the  neighboring  powers  were  at  war  the  province  should 

1  See  §  113. 

2  Amos,  Political  and  Legal  Remedies  for  War,  pp.  222,  223. 


602 

be  evacuated  by  Sardinian  soldiers  and  garrisoned  for  the  time 
being  by  the  neutral  troops  of  Switzerland.  When  in  1860 
Savoy  was  ceded  to  France,  both  Switzerland  and  the  Great 
Powers  declared  that  the  original  engagement  of  neutrality 
was  given  in  the  interests  of  all  the  parties  to  the  treaties  of 
1815,  and  argued  that  if  the  province  were  united  to  a  great 
military  state  like  France,  there  could  be  little  or  no  secur- 
ity for  the  continuance  of  the  special  condition  imposed  upon 
it.  France  and  Sardinia  on  the  other  hand  contended  that 
the  neutrality  guaranteed  to  Savoy  was  in  favor  of  Sardinia 
only  ;  but  they  were  willing  to  agree  that  France,  as  succes- 
sor to  Sardinia,  should  fulfil  the  obligations  arising  out  of 
it.1  No  solution  of  the  difficulty  by  general  consent  was 
reached  at  the  time  ;  but  when  in  1883  the  Federal  Council 
of  Switzerland  complained  of  the  commencement  of  fortifica- 
tions by  France  on  the  neutralized  territory  and  not  far  from 
the  city  of  Geneva,  the  government  of  the  French  Republic 
recognized  the  justice  of  the  Swiss  remonstrance  and  ordered 
the  works  to  be  discontinued.2  It  is  clear,  therefore,  that 
some  limitation  upon  the  ordinary  rights  of  sovereignty  is 
accepted  by  France  as  a  condition  of  its  tenure  of  Savoy. 
Yet  it  is  impossible  to  say  how  far  this  limitation  extends, 
and  what  amount  of  recognition  of  Savoyard  neutrality  could 
be  asked  of  a  power  which  was  engaged  in  warfare  with 
France.  The  government  of  the  Republic  would  be  free  to 
obtain  conscripts  from  the  population  of  the  province  sup- 
posed to  be  neutralized,  and  to  levy  therein  extraordinary 
taxes  for  the  purpose  of  supporting  the  war.  It  would  not 
be  obliged  to  evacuate  the  territory  and  allow  Swiss  troops 
to  hold  it  during  hostilities  ;  for  nothing  of  the  kind  was 
done  in  the  course  of  the  great  struggle  with  Germany  in 
1870,  and  the  precedents  of  that  period  would  probably  be 
followed  in  any  future  war.  But  if  France  is  free  to  use 

1  Amos,  Political  and  Legal  Remedies  for  War,  pp.  217,  218  ;  Wheaton, 
International  Law  (Dana's  ed.),  note  202. 

2  Annual  Register  for  1883,  pp.  269,  270. 


THE  NATURE   AND   HISTORY  OF   NEUTRALITY          603 

all  the  resources  of  Savoy  for  warlike  purposes,  it  is  hardly 
likely  that  the  enemies  of  France  will  abstain  from  attack- 
ing Savoyard  territory  should  they  deem  themselves  likely 
to  gain  any  military  advantage  from  invasion.  No  German 
troops  attempted  to  penetrate  into  it  during  the  war  of  1870- 
1871  ;  but  the  strategy  of  their  leaders  did  not  include  mili- 
tary operations  so  far  to  the  south.  Had  the  plan  of  their 
campaign  required  it,  they  would  probably  have  entered 
the  province  without  hesitation ;  and  it  is  difficult  to  believe 
that  Italian  strategists  have  allowed  their  calculations  of  the 
chances  of  invasion  to  be  altered  in  any  way  by  the  shadowy 
neutrality  of  a  portion  of  the  frontier  between  Italy  and  her 
northwestern  neighbor.  Considerations  of  a  similar  kind 
apply  to  Corfu  and  Paxo,  two  of  the  Ionian  Islands,  which 
were  formally  neutralized  by  the  Great  Powers  when  the 
group  to  which  they  belong  was  handed  over  to  Greece  in 
1864.  The  King  of  Greece  engaged  "to  maintain  such 
neutrality."1  His  obligations  are  nowhere  expressed  in 
more  definite  phraseology,  and  it  is  obvious  that  they  are  as 
vague  as  words  can  make  them.  The  Greek  Government 
draws  men  and  supplies  from  these  islands,  as  from  other 
portions  of  its  dominions  ;  and,  that  being  the  case,  justice 
appears  to  demand  that  a  power  at  war  with  Greece  should 
be  free  to  attack  and  occupy  them.  When  a  whole  state  has 
been  neutralized  its  rights  and  obligations  are  clear  ;  but 
legal  ingenuity  fails  before  the  attempt  to  define  the  immu- 
nities and  duties  of  a  neutralized  part  of  a  non-neutralized 
whole.  Its  position  is  anomalous  to  the  last  degree.  We 
may  rest  assured  that  such  an  artificial  arrangement  will  not 
stand  the  strain  of  a  serious  war. 

Some  perception  of  the  difficulties  we  have  indicated 
seems  to  have  influenced  the  powers  assembled  in  the  West 
African  Congress  of  Berlin,  when  they  discussed  the  ques- 
tion of  the  neutrality  of  the  territories  comprised  in  the 
conventional  basin  of  the  Congo,  some  of  which  belong  to 
1  Holland,  European  Concert  in  the  Eastern  Question,  pp.  46-54, 


604          THE  NATURE  AND   HISTORY  OF  NEUTRALITY 

various  European  states.  Mr.  Kasson,  the  American  pleni- 
potentiary, proposed  that  the  districts  in  question  should  be 
permanently  neutralized  under  the  guarantee  of  the  signa- 
tory powers.  But  though  the  project  brought  forward  by 
him  received  weighty  support,  the  Congress  finally  decided 
against  it,  on  the  ground  that  a  belligerent  state  could  not 
be  required  to  deprive  itself  of  a  part  of  its  means  of  action, 
or  to  refrain  from  using  a  portion  of  its  dominions.  The 
representative  of  the  United  States  pointed  out  that  the 
development  of  America  in  the  colonial  epoch  had  been 
greatly  retarded  by  wars  between  the  European  powers  who 
held  territorial  possessions  within  it,  and  declared  that  his 
proposition  was  formulated  with  a  view  to  saving  Africa 
from  similar  calamities.  The  object  of  the  American  Gov- 
ernment met  with  general  concurrence,  and  an  attempt  was 
made  to  realize  it  in  the  Final  Act  of  the  Conference,  which 
was  signed  on  Feb.  26,  1885.  The  eleventh  article  provided 
that  "in  case  a  power  exercising  rights  of  sovereignty  or 
protectorate  in  the  countries  mentioned  in  Article  1,  and 
placed  under  the  free-trade  system,  shall  be  involved  in  a 
war,  then  the  High  Signatory  Parties  to  the  present  Act, 
and  those  who  shall  hereafter  adopt  it,  bind  themselves  to 
lend  their  good  offices  in  order  that  the  territories  belonging 
to  this  power  and  comprised  in  the  conventional  free-trade 
zone,  shall,  by  the  common  consent  of  this  power  and  the 
other  belligerent  or  belligerents,  be  placed  during  the  war 
under  the  rule  of  neutrality,  and  considered  as  belonging  to 
a  non-belligerent  state,  the  belligerents  henceforth  abstain- 
ing from  extending  hostilities  to  the  territories  thus  neutral- 
ized, and  from  using  them  as  a  base  for  warlike  operations." 
Temporary  exemption  from  hostilities  by  the  consent  of  all 
the  parties  to  the  war  is  very  different  from  permanent 
neutralization.  But  it  may  be  possible  when  the  latter  is 
impossible.  Should  the  case  contemplated  above  ever  arise, 
it  will  be  interesting  to  watch  whether  the  belligerent 
powers  agree  to  make  the  arrangement  indicated,  or  are 


605 

content  to  regard  it  as  a  counsel  of  perfection  far  above  the 
moral  standard  of  ordinary  rulers.1 

§  227 

Seas  and  straits  could  be  neutralized  as  well  as  territory, 
if  all  the  maritime  powers,  or  even  the  leading  ones  among 
them,  together  with  all  others  specially  inter-  Neutralized 
ested  in  the  area  in  question,  agreed  to  refrain  waterways. 
from  naval  hostilities  within  it  and  enforce  a  similar  absten- 
tion on  recalcitrant  states.  But  no  such  neutralization  has 
been  effected  except  in  the  cases  of  the  Suez  and  Panama 
Canals,  the  history  and  present  position  of  which  were  de- 
scribed when  we  considered  the  Law  of  Peace.2  The  rules 
for  the  navigation  of  the  Panama  Canal,  contained  in  the 
treaty  between  Great  Britain  and  the  United  States  which  en- 
acted them,  are  practically  the  same  as  those  already  accepted 
by  all  civilized  powers  either  expressly  or  tacitly  for  the  Suez 
Canal.  Moreover,  the  United  States,  to  whom  control  has 
been  committed,  is  both  able  and  willing  to  enforce  the  pro- 
visions which  forbid  warlike  operations  in  the  canal  or  its 
approaches.  These  special  circumstances  justify  the  con- 
clusion that,  unless  some  important  power  or  group  of 
powers  challenges  the  arrangements  before  the  canal  is  com- 
pleted, it  will  be  opened  as  an  international  waterway,  neu- 
tralized by  general  consent  and  adequately  secured  against 
infringement  of  its  permanent  neutrality.  As  regards  the 
Suez  Canal,  the  Convention  of  1888,  which  imposed  on  it 
and  its  approaches  a  permanently  neutral  character,  was 
signed  by  the  six  Great  Powers  of  Europe,  together  with 
Turkey,  Spain,  and  the  Netherlands.  Moreover,  its  six- 
teenth article  contained  a  stipulation  that  other  powers 
should  be  invited  to  accede  to  it.  It  bore,  therefore,  from 
the  first  the  character  of  a  great  international  act,  and  has 

1  See  Protocols  and  General  Act  of  the  West  African  Conference,  in 
British  Parliamentary  Papers,  Africa,  No.  4  (1885),  pp.  146-149,  183-185, 
256-258,  307.  a  See  §  90. 


606          THE  NATURE  AND   HISTORY   OF   NEUTRALITY 

had  that  quality  more  deeply  impressed  on  it  as  time  went 
on  by  the  tacit  if  not  the  express  consent  of  the  civilized 
world.  It  is  this  alone  that  has  given  to  the  canal  a  definite 
status  and  settled  its  position  in  International  Law.  In 
1856  the  Khedive  Said,  in  a  concession  to  M.  de  Lesseps,  de- 
clared that  the  canal  and  its  ports  should  always  be  open  as 
neutral  passages  to  all  ships  of  commerce.1  This  unilateral 
statement  was  invoked  by  the  great  French  engineer  in 
1882,  in  support  of  his  contention  that  the  British,  in  seizing 
the  canal  and  making  it  the  base  of  their  operations  in 
Egypt,  were  guilty  of  unlawful  interference  with  a  neutral- 
ized waterway.  But  he  stood  almost  alone  in  the  view  he 
took  of  their  proceedings.  His  protests  were  disregarded 
by  statesmen,  who  began  soon  after  they  were  made  the  long 
and  intricate  series  of  negotiations  which  led  to  the  Conven- 
tion of  1888.  It  is  obvious  that,  had  the  canal  been  already 
neutralized,  it  would  not  have  been  necessary  to  spend  five 
or  six  years  on  the  discussion  of  plans  for  imposing  a  neutral 
character  upon  it. 

§  228 

One  of  the  most  important  distinctions  in  the  whole  range 
of  International  Law  is  that  between  the  two  senses  of  the 
The  divisions  of  word  neutral  when  used  as  a  substantive.  It 

the  Law  of  Neu-  . 

traiuy.  may  mean  either  a  neutral  state  or  an  individ- 

ual who  is  a  subject  and  citizen  of  a  neutral  state.  The 
rights  and  obligations  of  the  former  differ  widely  from  those 
of  the  latter.  In  order  to  keep  them  separate  we  must  make 
a  distinction  at  the  outset  between  the  two  great  divisions 
into  which  the  whole  Law  of  Neutrality  naturally  falls. 
They  are 

I.  Rights  and  obligations  as  between  Belligerent  States 
and  Neutral  States. 

II.  Rights  and  obligations  as  between  Belligerent  States 
and  Neutral  Individuals. 

1  British  Parliamentary  Papers,  Egypt,  No.  28  (1888),  p.  6. 


THE  NATURE  AND  HISTORY  OF  NEUTRALITY          607 


The  distinction  has  only  to  be  stated  in  order  to  be  recog- 
nized as  just  and  necessary.  A  neutral  state  has  many 
rights  against  a  belligerent  which  from  the  nature  of  the 
case  a  neutral  individual  cannot  have,  and  is  under  many 
obligations  from  which  a  neutral  individual  is  free.  On  the 
other  hand  the  neutral  individual  may  do  many  acts  which 
the  neutral  state  may  not  do,  and  is  subjected  to  many  inter- 
ferences from  which  the  neutral  state  is  free.  And  just  as 
the  rights  and  obligations  differ  in  the  two  cases,  so  also  do 
the  remedies.  When  state  wrongs  state,  the  remedy  is  inter- 
national; but  when  a  neutral  individual  indulges  in  conduct 
which  a  belligerent  has  a  right  to  prevent,  the  injured  gov- 
ernment strikes  directly  at  him  and  punishes  him  in  its  own 
courts.  The  neutral  state  of  which  he  is  a  subject  has  noth- 
ing to  do  with  the  matter,  unless  the  belligerent  attempts  to 
punish  for  acts  deemed  innocent  by  International  Law  or  to 
inflict  severer  penalties  than  its  rules  allow.  As  we  con- 
sider in  detail  the  rights  and  obligations  of  neutrality,  the 
distinction  we  have  just  drawn  in  outline  will  become  fully 
apparent. 

Our  two  main  divisions  work  out  into  a  variety  of  subor- 
dinate heads,  each  of  which  will  be  dealt  with  in  a  separate 
chapter.  The  following  table  shows  in  a  graphic  manner 
the  way  in  which  we  propose  to  arrange  the  subject. 


I.   Law  of  Neutrality  as  between 
State  and  State. 


II.   Law  of  Neutrality  as  between 
States  and  individuals. 


(1)  Duties  of  a  Belligerent   State 

towards  Neutral  States. 

(2)  Duties    of    a     Neutral    State 

towards  Belligerent  States. 
"  (1)    Ordinary  Neutral  Commerce. 

(2)  Blockade. 

(3)  Contraband  Trade. 

(4)  Unneutral  Service. 


CHAPTER  II 

THE  DUTIES  OF   BELLIGERENT   STATES   TOWARDS  NEUTRAL 

STATES 

§229 

THE  law  of  nations  defines  with  fair  amount  of  clearness 
the  obligations  of  belligerent  states  in  their  dealings  with  those 
of  their  neighbors  who  remain  neutral  in  the  contest.  The 
first  and  most  important  of  their  duties  in  this  connection  is 

To  refrain  from  carrying  on  hostilities  within  neutral 
territory. 

We  have  already  seen  that,  though  this  obligation  was  recog- 
nized in  theory  during  the  infancy  of  International  Law,  it 
(i)  TO  refrain  was  often  very  imperfectly  observed  in  practice.1 
ho°sTimie7w"fwn  But  in  modern  times  it  has  been  strictly  en- 
neutrai  territory,  forced,  and  any  state  which  knowingly  ordered 
warlike  operations  to  be  carried  on  in  neutral  territory,  or 
refused  to  disavow  and  make  reparation  for  such  acts  when 
committed  by  its  subordinates  on  their  own  initiative,  would 
bring  down  upon  itself  the  reprobation  of  civilized  mankind. 
Hostilities  may  be  carried  on  in  the  territory  of  either  bel- 
ligerent, on  the  high  seas  and  in  territory  belonging  to  no 
one.  Neutral  land  and  neutral  territorial  waters  are  sacred. 
No  acts  of  warfare  may  lawfully  take  place  within  them. 
The  Hague  Conference  of  1907  declared  in  its  Convention 
with  regard  to  neutrality  in  land  warfare  that  "  the  territory 
of  neutral  powers  is  inviolable,"  2  and  in  the  corresponding 
convention  with  regard  to  maritime  war  that  "  any  act  of  hos- 
tility, including  therein  capture  and  the  exercise  of  the  right 

1  See  §  223.  a  See  Article  2. 

608 


BELLIGERENT   AND   NEUTRAL   STATES  609 

of  search,  committed  by  belligerent  war-ships  in  the  territorial 
waters  of  a  neutral  power,  constitutes  a  violation  of  neutrality 
and  is  strictly  forbidden." l  Even  when  cruisers  have  begun 
the  chase  of  an  enemy  vessel  on  the  high  seas,  they  may  not 
follow  it  into  neutral  waters,  and  there  complete  the  capture. 

In  the  year  1800  a  just  and  logical  extension  of  these 
rules  was  made  by  a  great  British  judge  who  has  never  been 
accounted  a  champion  of  neutral  rights.  We  refer  to  Sir 
W.  Scott,  who  laid  down  in  the  case  of  the  Twee  Gebroeders* 
"an  act  of  hostility  is  not  to  take  its  commencement  on  neu- 
tral territory."  He  added,  "  I  am  of  opinion  that  no  use  of 
a  neutral  territory  for  purposes  of  war  is  to  be  permitted.  I 
do  not  say  remote  uses,  such  as  procuring  provisions  and  re- 
freshments, and  acts  of  that  nature,  which  the  law  of  nations 
universally  tolerates,  but  that  no  proximate  acts  of  war  are 
in  any  manner  to  be  allowed  to  originate  on  neutral  ground." 
And  in  pursuance  of  this  view  he  released  four  Dutch  ships, 
which  had  been  captured  in  Dutch  waters  by  boats  sent  from 
the  sides  of  a  British  man-of-war  lying  not  far  off  in  neutral 
Prussian  waters.  The  inclusion  of  attaining  immediate  readi- 
ness for  warlike  operations  among  the  acts  forbidden  to  bel- 
ligerents in  neutral  waters  has  been  generally  accepted.  It 
may  be  pointed  out  that  this  interpretation  of  the  received 
rule  would  suffice  to  bring  within  its  prohibitions  the  assem- 
blage in  a  neutral  bay  of  a  number  of  torpedo  boats  prepared 
to  make  a  sudden  dash  for  a  neighboring  port  belonging  to 
the  other  belligerent,  especially  if  they  stole  into  the  bay  or 
harbor  one  by  one,  having  picked  their  way  towards  it 
along  a  neutral  coast-line.  Indeed,  it  might  be  argued  that 
any  use  by  belligerent  torpedo  boats  of  neutral  waters  which 
lay  near  a  hostile  line  of  naval  communication  was  forbidden, 
since  nothing  would  be  easier  for  them  than  to  make  a  dash 
from  thence  at  a  passing  enemy  squadron  many  miles  out  at 
sea. 

Extreme  necessity  will   justify  a  temporary  violation  of 

1  See  Article  2.          2  C.  Robinson,  Admiralty  Reports^  vol.  Ill,  p.  162. 


610  THE   DUTIES   OF  BELLIGERENT   STATES 

neutral  territory.  But  the  extremity  ought  to  be  very  great, 
and  explanation  together  with  any  reparation  the  case  may 
demand  ought  to  be  tendered  immediately  to  the  aggrieved 
neutral.  It  is  impossible  to  lay  down  beforehand  an  exact 
rule  for  cases  the  essence  of  which  is  that  they  are  beyond 
rule.  The  nearest  approach  to  a  satisfactory  formula  is  to 
be  found  in  Mr.  Webster's  statement  in  the  case  of  the  Caro- 
line^ that  it  is  necessary  "to  shew  a  necessity  of  self-defence, 
instant,  overwhelming,  leaving  no  choice  of  means,  and  no 
moment  for  deliberation."  In  this  case  Great  Britain  finally 
expressed  regret  for  the  absence  of  any  explanation  and  apol- 
ogy at  the  time,  and  the  American  government  accepted 
these  assurances.  The  incident  may  be  held  to  show  that 
temporary  violations  of  neutral  territory,  resorted  to  under 
stress  of  a  great  emergency,  and  limited  in  point  of  time  and 
magnitude  to  the  warding  off  of  the  danger  which  caused 
them,  are  but  technical  offences,  to  be  apologised  for  on  the 
one  hand  and  condoned  on  the  other,  but  not  regarded  as 
serious  wrongs  for  which  substantial  reparation  is  due. 

But  sometimes  complications  occur,  as  happened  in  the 
case  of  the  Reshitelni.  This  vessel  was  a  Russian  torpedo 
boat.  She  escaped  from  Port  Arthur,  then  besieged  by 
Japan,  on  August  10,  1904,  and  in  spite  of  pursuit  by  two 
Japanese  destroyers  entered  the  neutral  Chinese  harbor  of 
Chefoo  the  next  morning.  From  thence  she  is  said  to  have 
sent  important  despatches  to  the  Russian  government.  The 
two  Japanese  vessels  waited  outside  till  the  night  of  August 
11,  and  then  entered  the  harbor,  as  their  enemy  did  not  come 
out.  Meanwhile  the  Chinese  authorities  and  the  Russian 
commander  had  carried  on  negotiations,  which  ended  in  an 
agreement  that  the  vessel  should  be  disarmed  and  interned. 
Some  kind  of  disarmament  was  effected,  but  how  far  it 
extended  is  very  doubtful.  There  is  a  direct  conflict  of 
testimony  between  the  Japanese  officers  on  one  side  and 
the  Russian  and  Chinese  officers  on  the  other.  The 
1  Snow,  Coses  on  International  Law,  pp.  177,  178. 


TOWARDS   NEUTRAL   STATES  611 

former  declare  that  coaling  had  been  permitted,  that  no  ef- 
fective steps  towards  disarmament  had  been  taken,  and  in 
particular  that  all  the  ammunition  was  left  on  board.  The 
latter  assert  that  the  vessel  had  been  disarmed  completely, 
and  in  particular  that  the  guns  had  been  rendered  useless 
and  the  engines  disabled.  In  the  early  morning  of  August 
12  a  Japanese  party  boarded  the  Reshitelni,  and  offered  her 
commander  the  alternative  of  putting  to  sea  in  an  hour  or 
surrender.  They  were  met  by  a  refusal  followed  by  an  un- 
successful attempt  to  blow  up  the  vessel ;  and  after  a  short 
struggle  they  seized  her  and  carried  her  off.1  If  the  case  had 
stood  alone,  little  could  be  said  in  defence  of  the  action  of 
Japan.  But  it  was  one  of  a  series,  in  all  of  which  the  action 
of  China  had  been  weak  and  dubious.  She  allowed  Russia 
to  violate  her  neutrality  again  and  again,  and  had,  therefore, 
little  reason  for  feeling  aggrieved  when  Japan  retorted  in 
kind.  But  nevertheless  the  Japanese  authorities  acted  with 
undue  harshness.  Evidently  they  had  marked  down  their 
prey,  and  did  not  mean  to  let  it  escape  them.  Their  correct 
course  would  have  been  to  give  the  Chinese  officials  a  few 
hours  to  secure  complete  disarmament  and  internment.  At 
the  end  of  that  period,  if  what  they  demanded  had  not  been 
done  to  the  satisfaction  of  the  Japanese  consul,  they  would 
have  been  quite  justified  in  capturing  the  Russian  vessel. 
Incidentally  the  case  throws  light  on  another  point.  Resist- 
ance was  offered  to  the  boarding  party  when  they  made  their 
capture ;  but  it  was  never  maintained  that  this  in  itself  dis- 
entitled the  Russians  to  any  redress  that  might  be  due  to 
them  for  the  seizure.  This  fact,  as  far  as  it  goes,  sup- 
ports the  doctrine  that  a  belligerent  vessel  suddenly  attacked 
in  neutral  waters  has  the  right  to  defend  herself  if  the  neutral 
cannot  or  will  not  defend  her,  though  her  first  duty  is  to 
appeal,  if  there  is  time,  to  the  local  authorities  for  protection. 

1  Takahashi,  International  Law  applied  to  the  Russo-Japanese  War, 
pp.  437-444 ;  Lawrence,  War  and  Neutrality  in  the  Far  East,  2d  ed., 
pp.  292-294. 


612  THE  DUTIES   OF   BELLIGERENT   STATES 

§230 

We  will  now  consider  the  duty  of  a  belligerent 
To  leave  unmolested  as  far  as  possible  neutral  submarine  cables. 

And  in  this  connection  it  will  be  convenient  to  deal  with 
the  various  questions  that  have  arisen  in  recent  years  with 
(2)  TO  leave  un-  regard  to  such  cables  in  time  of  war,  though 
"oiTwfneutrir  man7  of  tnem  are  concerned  with  the  action 
submarine  cables.  of  neutrals  rather  than  the  proceedings  of 
belligerents.1 

Submarine  cables  are  comparatively  new  things.  The 
largely  signed  Convention  of  1884  laid  down  rules  for  their 
protection  in  ordinary  circumstances,  but  expressly  reserved 
full  liberty  of  action  to  states  at  war.  Since  it  was  nego- 
tiated law-making  treaties  have  come  into  existence  in  abun- 
dance, but  among  all  their  stipulations  there  is  but  one  article 
that  bears  on  the  subject  we  are  considering.  It  is  contained 
in  the  Hague  Code  of  land  warfare  as  revised  in  1907,  and 
provides  that  submarine  cables  connecting  territory  under 
belligerent  occupation  and  neutral  territory  are  not  to  be 
seized  or  destroyed  except  under  stress  of  absolute  necessity. 
If  cut,  they  must  be  restored  and  compensations  arranged  at 
the  conclusion  of  peace.2  Usage  cannot  be  invoked  to  make 
good  deficiencies  of  legislation,  for  there  has  not  been  suf- 
ficient time  to  create  a  body  of  customar}^  law.  But  states- 
men and  writers  have  made  many  proposals,  some  of  them 
luminous  and  well-considered,  others  more  remarkable  for 
ingenuity  than  utility.  In  1869  the  United  States  suggested 
without  result  the  neutralization  of  all  submarine  cables,  and 
the  powers  were  asked  in  vain  to  make  wanton  destruction 
of  them  in  the  open  sea  an  act  of  piracy.3  In  the  Hispano- 
American  War  of  1898  it  was  sought  to  find  justification  for 
the  cutting  of  cables  between  neutral  and  enemy  territory  by 

1  G.  G.  Wilson,  Submarine  Telegraphic  Cables  in  their  International 
Relations.  2  See  Article  54. 

3  Moore,  International  Law  Digest,  vol.  II,  pp.  23,  475,  476. 


TOWARDS   NEUTRAL  STATES  613 

laborious  attempts  to  prove  that  they  were  contraband  or 
composed  of  contraband  material.  And  it  was  argued  that  if 
a  cable  reached  the  land  at  a  port  under  blockade,  the  sending 
of  warlike  messages  into  the  place  was  for  that  reason  an 
offence  which  called  for  the  destruction  of  the  instrument 
whereby  it  was  committed.  In  1904  a  new  theory  was  pub- 
lished in  Germany  to  the  effect  that  a  submarine  cable  is  under 
the  territorial  sovereignty  of  the  country  from  whose  soil  it 
proceeds.  It  is  a  bridge  under  the  water,  a  sort  of  tentacle  or 
arm  of  dominion  pushed  forth  into  the  depths.1  There  seems 
no  need  for  these  somewhat  far-fetched  analogies  and  recon- 
dite arguments.  The  simple  principle  that  ocean  cables  are 
means  of  communication  is  sufficient.  When  they  are  used 
by  the  enemy  they  may  be  controlled,  or  in  the  last  resort  cut, 
in  any  place  where  it  is  lawful  to  carry  on  hostilities,  without 
regard  to  ownership  or  connection  with  neutral  shores,  just  as 
a  railway  passing  through  a  hostile  country  may  be  torn  up  on 
enemy  soil,  whether  it  is  prolonged  into  neutral  territory  or 
not.  The  question  of  when  and  where  cables  may  be  cut, 
and  the  question  of  how  to  treat  neutral  owners  and  users  of 
them,  are  important  and  difficult.  The  best  way  to  deal 
with  them  is  to  take  separately  the  cases  which  may  arise. 
They  may  be  reduced  to  four. 

The  first  occurs  when  the  cable  connects  two  portions  of  the 
territory  of  a  belligerent.  Then  undoubtedly  he  may  destroy 
it  if  he  pleases ;  and  the  enemy  may  destroy  it  if  he  can, 
whether  he  picks  it  up  in  hostile  waters  or  on  the  high  seas. 
Only  in  neutral  waters  is  it  free  from  attack.  In  1903  the 
Government  of  Brazil  broke  the  submarine  cable  in  the  Bay 
of  Rio  de  Janeiro  as  the  revolted  fleet  under  Admiral  Mello 
entered,  and  in  the  Hispano-American  War  of  1898  the 
Americans  cut  the  cable  along  the  coast  of  Cuba  between 
Havana  and  Santiago.2  Further,  belligerents  may  exercise 

1  Scholz,  Krieg  und   Seekabel,  quoted  by  Phillipson,  Studies  in  Inter- 
national Zato,  pp.  69-71. 

2  Phillipson,  Studies  in  International  Law,  p.  72. 


614  THE  DUTIES   OF   BELLIGERENT  STATES 

a  censorship  over  all  telegrams  they  convey,  and  refuse  to 
receive  despatches  they  regard  as  suspicious.  At  the  begin- 
ning of  the  Boer  War  Great  Britain  resorted  to  these 
measures  in  connection  with  the  cables  between  England 
and  South  Africa,  which  were  not  only  under  British 
sovereignty,  but  were  also  British-owned.  For  a  time  she 
refused  all  cipher  despatches,  and  censored  all  telegrams 
proceeding  by  way  of  Aden.  In  August,  1901,  after  the 
back  of  the  Boer  resistance  had  been  broken,  she  reopened 
the  service  to  telegrams  sent  in  any  of  the  authorized 
commercial  codes.  Violent  protests  were  made  in  the  con- 
tinental press  ;  but  she  was  clearly  within  her  rights. 
Neutrals  cannot  be  allowed  to  use  belligerent  cables  to  the 
detriment  of  the  State  which  controls  them. 

The  second  case  arises  when  the  cable  connects  the  territories 
of  the  two  belligerents.  Then  either  or  both  may  cut  it,  or 
they  may  enter  into  arrangements  for  working  it  in  such  a 
way  as  to  preclude  its  use  for  warlike  purposes.  Thus  in 
1877  at  the  beginning  of  the  Turko-Russian  War  the  Turks 
cut  the  cable  between  Constantinople  and  Odessa.  But  in 
1894  the  neutral-owned  cables  connecting  China  and  Japan 
were  not  cut  because  the  proprietors  undertook  to  pass  no 
warlike  messages  ;  and  in  1898  at  the  outbreak  of  the 
Hispano- American  War  both  sides  agreed  to  keep  intact  the 
cable  between  Havana  and  Key  West,  each  subjecting  all 
messages  sent  in  at  his  end  to  a  severe  censorship,  and  allow- 
ing no  ciphers  to  pass.1  The  right  to  cut  cables  uniting  the 
territories  of  the  two  belligerents,  and  also  those  uniting 
two  parts  of  the  territory  of  the  same  belligerent,  was 
recognized  by  the  Institute  of  International  Law  in  1902, 
except  in  neutral  or  neutralized  waters.2 

Our  third  and  most  difficult  case  is  met  with  when  the 
cable  connects  the  territory  of  a  belligerent  with  that  of  a 
neutral.  In  connection  with  it  we  encounter  grave  differ- 

1  Phillipson,  Studies  in  International  Law,  pp.  73,  74. 

2  Annuaire  de  V Institute  de  Droit  International,  1902,  p.  331. 


TOWARDS   NEUTRAL   STATES  615 

ences  of  opinion.  On  the  one  hand  the  right  of  the  neutral 
to  hold  communication  with  either  belligerent  has  been 
strongly  asserted,  and  on  the  other  the  right  of  a  belligerent  to 
prevent  warlike  information  reaching  his  enemy.  It  is  ob- 
vious that  some  kind  of  working  compromise  is  necessary.  In 
1902  the  Institute  of  International  Law  could  go  no  further 
than  the  assertion  that  the  neutral  must  not  allow  the  trans- 
mission of  despatches  which  lend  assistance  to  one  of  the 
belligerents.  It  also  denied  to  a  belligerent  the  right  to  cut 
on  the  high  seas  a  cable  connecting  enemy  and  neutral 
territory,  except  in  cases  where  it  had  established  an  effective 
blockade  of  the  enemy  landing  place.1  But  there  seems  no 
good  reason  why  blockade  should  be  deemed  to  affect  the 
bottom  of  the  sea  beneath  the  keels  of  the  blockading  ships, 
nor  on  the  other  hand  why  a  belligerent  should  be  denied 
the  right  to  perform  in  the  open  waters  of  the  globe  one 
particular  kind  of  warlike  operation  which  involves  no 
unsuspected  danger  to  neutral  life  and  limb,  when  he  is  at 
liberty  to  perform  therein  all  others  of  a  similar  kind.  It 
should,  of  course,  be  provided  that  such  a  drastic  method 
should  not  be  resorted  to  unless  it  is  the  only  way  of  pre- 
venting the  transmission  of  valuable  information  to  the 
enemy.  It  may  happen  that  little  use  of  a  cable  for 
warlike  purposes  is  likely  to  be  made,  while  the  use  of  it  for 
peaceful  purposes  is  enormous.  In  such  circumstances  a 
belligerent  might  not  care  to  take  the  responsibility  of 
cutting  it,  as  was  the  case  with  Spain,  when  in  her  war  of 
1898  with  the  United  States  she  refrained  from  interfering 
with  any  of  the  cables  between  Europe  and  the  shores  of  her 
enemy.  It  is  also  possible  that  some  agreement  might  be 
come  to  between  the  belligerents  and  the  neutral  to  seal  the 
cable  at  both  ends  during  the  war,  or  to  use  it  subject  to  a 
satisfactory  censorship.  But  in  the  last  resort  there  should 
exist  liberty  to  cut,  as  the  United  States  cut  in  the  war  of 
1898  the  cables  between  Santiago  and  Jamaica,  and  Manila 
1  Annuaire,  1902,  p.  832. 


616  THE  DUTIES   OF   BELLIGERENT   STATES 

and  Hong-Kong.  The  question  of  compensation  to  neutral 
owners  then  arises,  though  surely  none  need  be  made  to 
enemies.  In  the  cases  just  mentioned  the  United  States 
maintained  that  no  right  to  payment  existed,  but  as  a  matter 
of  equity  made  good  the  actual  damage  done.1  We  have 
already  seen  that  the  Hague  Code  for  land  warfare  allows 
submarine  cables  connecting  an  occupied  territory  with  a 
neutral  territory  to  be  seized  or  destroyed  in  the  case  of 
absolute  necessity,  under  an  obligation  to  restore  and  com- 
pensate when  peace  is  made.  We  must  also  remember  that 
the  Second  Hague  Conference  expressed  in  its  Final  Act  the 
wish  that  in  default  of  a  naval  code  the  powers  should  "  apply 
as  far  as  possible  to  war  by  sea  the  principles  of  the  Conven- 
tion relative  to  the  Laws  and  Customs  of  War  on  land." 
These  considerations  support  the  view  that,  subject  to  com- 
pensation, destruction  on  the  high  seas  is  permissible  in  the 
last  resort. 

The  fourth  and  last  case  comes  before  us  when  the  cable 
connects  the  territories  of  two  neutrals.  As  to  this  the  opinion 
of  jurists  is  almost  if  not  quite  unanimous.  The  Institute  of 
International  Law  at  its  Brussels  meeting  in  1902  agreed  that 
such  cables  were  inviolable.2  The  United  States  Naval  War 
Code  of  1900  laid  down  the  same  rule.3  But  a  difficulty 
might  arise  when  a  cable  with  two  neutral  termini  was  a  link 
in  a  chain  of  telegraphic  communications  used  by  a  belligerent 
for  his  warlike  purposes.  Then,  if  diplomatic  action  failed 
to  secure  a  closure  of  it  to  his  messages,  the  other  belligerent 
might  claim  with  some  reason  a  right  to  cut  it.  But  un- 
doubtedly the  general  rule  must  be  that  cables  between 
neutral  shores  cannot  be  molested. 

1  U.  S.  Naval  War  College,  International  Law  Situations,  1901,  pp.  177, 
178.  a  Annuaire,  1902,  p.  331.  8  See  Article  6. 


TOWARDS   NEUTRAL  STATES  617 

§231. 

In  addition  to  respecting  neutral  sovereignty  by  refraining 
within  its  area  from  warlike  operations,  whether  fully  devel- 
oped or  in  their  incipient  stages,  it  is  the  duty  of  belligerents 

To  abstain  from  making  on  neutral  territory  direct  prepara- 
tions for  acts  of  hostility. 

Warlike  expeditions  may  not  be  fitted  out  within  neutral 
borders,  nor  may  neutral  land  or  waters  be  made  a  base  of 
operations    against    an    enemy.      The    fighting  (s>  TO  abstain 
forces  of  a  belligerent  may  not  be  reinforced  or  IXStSS 
recruited  in  neutral  territorv,  and  supplies  of  Direct  preparations 

»  '  for  acts  of  hos- 

arms  and  warlike  stores  or  other  equipments  of  tuity. 
direct  use  for  war  may  not  be  obtained  therein  by  belligerent 
warships.1  These  prohibitions  are  imposed  by  International 
Law ;  and  if  a  belligerent  ignores  them  or  a  neutral  suffers 
them  to  be  ignored,  the  aggrieved  parties,  whether  neutral 
or  belligerent,  can  demand  reparation  and  take  means  to 
prevent  a  repetition  of  the  offence.  But  they  do  not  apply 
to  supplies  and  equipments  that  are  useful  for  such  purposes 
as  sustaining  life  or  carrying  on  navigation.  With  regard 
to  these  it  used  to  be  held  that  they  were  left  entirely  to  the 
discretion  of  neutrals,  who  could  make  what  arrangements 
they  pleased,  as  long  as  they  laid  down  rules  that  were  rea- 
sonable in  themselves  and  applied  them  with  absolute  impar- 
tiality. The  result  was  a  mosaic  of  diverse  and  sometimes 
contradictory  regulations,  bewildering  to  belligerents  and 
derogatory  to  the  claim  of  International  Law  to  be  regarded 
as  a  science.  The  powers  assembled  at  the  Hague  in  1907 
endeavored  to  remedy  the  confusion  by  negotiating  a  con- 
vention concerning  the  Rights  and  Duties  of  Neutral  States 
in  Maritime  War.  Its  provisions  bear  throughout  the 

1  Fifth  Hague  Convention  of  1907,  Article  4  ;  Thirteenth  Hague  Conven- 
tion of  2907,  Articles  6,  18. 


618  THE  DUTIES  Otf  BELLIGERENT   STATES 

marks  of  compromise.  To  some  extent  they  retain  the  old 
liberty  accorded  to  neutral  governments.  But  in  a  large 
degree  they  limit  it,  and  turn  what  had  previously  been  ques- 
tions for  municipal  regulation  into  matters  controlled  by  gen- 
eral agreement.  The  Convention  thus  became  a  law-making 
document  on  a  large  scale,  though  it  did  little  else  than  give 
a  somewhat  grudging  and  maimed  consecration  to  rules  that 
had  previously  been  enforced  by  a  state  or  group  of  states. 
We  shall  consider  its  provisions  in  the  next  Chapter,  when 
we  come  to  deal  with  the  duties  of  neutral  governments. 

A  belligerent,  as  we  have  just  seen,  is  bound  not  to  use 
neutral  territory  as  a  base  of  operations,  or  as  a  convenient 
place  for  the  organization  of  warlike  expeditions  which  may 
proceed  from  thence  to  attack  the  enemy  or  prey  upon  his 
commerce.  But  it  is  impossible  to  understand  the  nature 
and  extent  of  these  obligations  without  an  examination  of  the 
exact  sense  to  be  attached  to  the  two  phrases,  "  base  of  opera- 
tions "  and  "  warlike  expedition."  The  former  is  a  technical 
term  of  the  military  art,  and  was  introduced  into  Interna- 
tional Law  when  the  growing  sense  of  state-duty  rendered 
it  necessary  to  define  with  accuracy  the  limits  of  belligerent 
liberty  and  neutral  forbearance.  It  is  to  be  found  in  the 
second  of  the  three  rules  of  the  Treaty  of  Washington  of 
1871 ; *  but  the  Geneva  arbitrators  did  not  attempt  to  explain 
it  in  their  award.  It  occurs  without  comment  in  the  French 
Neutrality  Regulations  of  1898  and  1904,  and  also  in  the 
Hague  Convention  on  maritime  neutrality.2  Hall  has  a  most 
able  discussion  on  it,8  in  the  course  of  which  he  contends  that 
"  continued  use  is  above  all  things  the  crucial  test  of  a  base  "; 
but  it  is  difficult  to  resist  the  argument  that,  though  continuous 
use  does  undoubtedly  make  a  place  from  which  supplies  and 
reinforcements  are  drawn  into  a  base,  yet  we  cannot  go  so 
far  as  to  say  that  without  continuous  use  there  can  be  no 
question  of  any  violation  of  neutrality.  It  is  quite  possible, 

1  See  §§  52,  £36.  «  See  Article  5. 

8  International  Law,  5th  ed.,  pp.  603-605. 


TOWARDS   NEUTRAL   STATES  619 

for  instance,  to  conceive  of  a  case  where  the  admission  into  a 
neutral  port  of  a  warlike  expedition  for  the  purpose  of  refit- 
ment and  coaling  would  enable  it  to  strike  a  successful  blow 
at  some  neighboring  possession  of  the  other  belligerent. 
Surely  in  such  circumstances  the  port  would  be  a  base  of 
operations,  even  though  the  belligerent  flag  was  seen  in  it  on 
no  other  occasion  during  the  war.  The  phrase  we  are  con- 
sidering is  often  used  in  connection  with  such  matters  as  the 
supply  of  arms  and  ammunition,  the  recruitment  of  men,  and 
the  addition  of  equipments  for  war.  But  these  things  were 
prohibited  definitely  and  directly  long  before  the  phrase  was 
introduced,  and  it  cannot  be  regarded  as  prohibiting  them  all 
over  again  indefinitely  and  indirectly.  It  is  suggested  that 
the  words  should  be  used  to  cover  cases  where  acts  which  neu- 
trals need  not  prohibit  when  done  to  a  slight  extent  or  for  a 
short  time,  have  taken  place  on  such  a  scale  or  for  so  long  a 
time  as  to  turn  them  into  occurrences  highly  beneficial  to  the 
belligerent  in  pursuit  of  his  warlike  ends.  For  instance, 
a  brief  visit  to  a  neutral  port  is  quite  allowable,  but  a  lengthy 
stay  for  purposes  of  rest  and  refitment  should  be  forbidden ; 
or  a  prize  may  be  taken  in  and  kept  for  a  short  period,  but  if 
the  port  is  filled  with  prizes  and  they  are  left  in  safety  there 
for  an  indefinite  time,  it  should  be  regarded  as  a  base  of 
operations. 

We  have  now  to  consider  what  is  meant  by  a  warlike  expe- 
dition. When  an  army  is  organized  or  a  squadron  fitted  out 
in  neutral  territory,  with  men,  officers,  arms,  and  equipment 
complete,  there  can  be  no  doubt  about  the  propriety  of  the 
description.  But  what  effect  has  the  absence  of  some  of  the 
elements  which  must  be  combined  in  order  to  make  a  fight- 
ing force  ?  An  answer  to  this  question  is  best  given  by 
reference  to  the  cases  in  which  the  point  was  decided.  In 
1828  a  civil  war  broke  out  in  Portugal  between  the  partisans 
of  Donna  Maria,  the  youthful  constitutional  sovereign,  and 
those  of  her  uncle,  Don  Miguel,  who  had  seized  the  throne 
as  the  champion  of  absolutism.  A  body  of  troops  in  the 


620  THE  DUTIES   OP   BELLIGERENT   STATES 

service  of  Donna  Maria,  being  driven  out  of  Portugal,  took 
refuge  in  England,  and,  along  with  other  Portuguese  adher- 
ents of  the  constitutional  cause,  endeavored  to  fit  out  an 
expedition  in  favor  of  their  mistress.  The  British  Govern- 
ment warned  them  that  it  would  not  allow  the  execution  of 
such  a  design,  and  was  informed  in  reply  that  the  only  object 
of  the  refugees  was  to  send  unarmed  Portuguese  and  Brazil- 
ian subjects  in  unarmed  merchant  vessels  to  Brazil,  then 
under  the  rule  of  an  Emperor  belonging  to  the  royal  house 
of  Portugal.  Early  in  1829  about  seven  hundred  men  under 
Count  Saldanha  embarked  at  Plymouth  in  four  unarmed 
vessels,  nominally  for  Brazil,  but  really  for  Terceira,  one  of 
the  Azores  which  had  remained  faithful  to  Donna  Maria. 
They  were  unarmed,  but  under  military  command  ;  and  the 
arms  intended  for  them  had  previously  been  shipped  as  mer- 
chandise from  another  port.  Off  Port  Praya  in  Terceira 
they  were  intercepted  by  Captain  Walpole  of  the  Ranger, 
who  had  been  despatched  from  England  to  see  that  they  did 
not  land  in  the  Azores.  He  told  Count  Saldanha  that  they 
were  free  to  go  where  they  would,  except  to  the  islands. 
On  the  refusal  of  the  Portuguese  commander  to  give  up  his 
purpose  or  yield  to  anything  but  force,  his  vessels  were  es- 
corted to  a  point  within  five  hundred  miles  of  the  English 
Channel.  Captain  Walpole  then  returned  to  Terceira,  and 
the  baffled  expedition  put  into  Brest.  The  case  established 
the  doctrine  that,  when  a  warlike  expedition  is  fitted  out  on 
neutral  ground  against  a  belligerent,  its  individual  members 
need  not  be  armed  in  order  to  bring  it  within  the  purview  of 
the  law,  if  only  they  are  organized  as  soldiers  and  placed 
under  military  command.  Jurists  have  generally  held  that 
the  British  ministers  were  right  in  their  view  of  the  illegality 
of  the  expedition,  and  wrong  in  the  means  they  took  to  stop 
it.  They  should  have  prevented  its  departure  from  British 
waters  where  they  had  jurisdiction,  instead  of  coercing  it  in 
Portuguese  waters  and  on  the  high  seas  where  they  had 
none.  By  the  proceedings  they  ordered  they  violated  the 


TOWARDS   NEUTRAL   STATES  621 

territorial  sovereignty  of  another  state  in  their  zeal  to  pre- 
vent a  violation  of  their  own.1 

Another  question  in  connection  with  expeditions  was  raised 
4n  1870,  when  a  large  number  of  Frenchmen  and  Germans, 
resident  in  the  United  States,  returned  to  their  own  country 
at  the  outbreak  of  the  Franco-Prussian  War,  in  order  to  fulfil 
their  obligation  of  military  service.  As  long  as  they  trav- 
elled singly  or  in  small  groups  as  ordinary  passengers,  no 
international  question  could  by  any  possibility  arise.  But 
in  one  case  as  many  as  twelve  hundred  French  subjects  em- 
barked at  New  York  in  two  French  ships  which  carried  a 
cargo  of  rifles  and  ammunition.  The  attention  of  Mr.  Fish, 
then  Secretary  of  State  in  President  Grant's  Cabinet,  was 
called  to  the  matter.  He  decided  that  the  vessels  could  not 
be  looked  upon  as  constituting  a  warlike  expedition  against 
Germany  ;  and  there  can  be  little  doubt  that  he  was  right.2 
The  Frenchmen  were  unarmed  and  unofficered.  There  was 
no  attempt  to  submit  them  to  military  discipline,  and  though 
it  was  not  denied  that  they  would  be  enrolled  in  the  fighting 
forces  of  their  country  as  soon  as  they  reached  its  soil,  it  was 
held  that  they  did  not  leave  New  York  in  an  organized  con- 
dition. Their  warlike  uses  were  too  remote  for  them  to  be 
considered  as  a  portion  of  the  combatant  forces  of  France  in 
such  a  sense  that  American  neutrality  was  violated  by  their 
departure,  though  they  could  have  been  made  prisoners  of 
war  if  the  vessels  which  carried  them  had  been  captured  on 
the  voyage  by  German  cruisers. 

The  two  cases  we  have  given  will  enable  us  to  form  a  fair 
idea  of  what  constitutes  a  warlike  expedition.  It  must  go 
forth  with  a  present  purpose  of  engaging  in  hostilities ;  it 
must  be  under  military  or  naval  command ;  and  it  must  be 
organized  with  a  view  to  proximate  acts  of  war.  But  it 
need  not  be  in  a  position  to  commence  fighting  the  moment 

i  Phillimore,  International  Law,  Pt.  Ill,  §§  CLIX,  CLX  ;  Snow,  Cases  on 
International  Law,  pp.  421-425. 

8  Hall,  International  Law,  5th  ed.,  pp.  607,  608. 


622  THE  DUTIES  OF   BELLIGERENT   STATES 

it  leaves  the  shelter  of  neutral  territory,  nor  is  it  necessary 
that  its  individual  members  should  carry  with  them  the 
arms  they  hope  soon  to  use.  When  a  belligerent  attempts 
to  organize  portions  of  his  combatant  forces  on  neutral  soil 
or  in  neutral  waters,  he  commits  thereby  a  gross  offence 
against  the  sovereignty  of  the  neutral  government,  and  prob- 
ably involves  it  in  difficulties  with  the  other  belligerent, 
who  suffers  in  proportion  to  his  success  in  his  unlawful  enter- 
prise. The  injured  neutral  may  not  only  demand  reparation 
and  indemnity,  but  may  also  use  force,  if  necessary,  to  pre- 
vent the  departure  of  expeditions  from  its  territory  or  seize 
the  persons  and  things  of  which  they  are  composed. 

§  232 

The  next  duty  of  belligerent  states  is 
To  obey  regulations  made  for  the  protection  of  neutrality. 

By  the  common  law  of  nations  the  land  forces 


e    °^  *ne  combatants  are  not  allowed  to  cross  a 
for  the  protection    neutral  frontier,  and  the  Hague  Convention  of 

of  neutrality. 

1907  on  neutrality  in  land  warfare  places  a  wide 
construction  on  the  prohibition.1  But  it  allows  under  strict 
conditions  2  a  passage  over  neutral  territory  to  the  sick  and 
wounded  of  belligerent  armies.3  The  only  other  case  in 
which  bodies  of  soldiers  may  be  permitted  to  cross  neutral 
borders  occurs  when  they  are  driven  over  them  by  the 
enemy.  In  such  circumstances  humanity  forbids  that  they 
should  be  forced  back  to  captivity  or  death  by  lines  of  neutral 
bayonets  ;  but  at  the  same  time  impartiality  demands  that 
they  shall  not  be  allowed  to  use  the  territory  they  have  en- 
tered as  a  place  of  refuge,  in  which,  safe  from  pursuit,  they 
can  reorganize  their  shattered  forces,  and  from  which  they 
can  sally  forth  to  renew  the  conflict  when  occasion  offers. 
The  two  are  reconciled  by  the  practice  of  disarming  them  as 

i  See  Articles  1,  2.  a  See  §  165.  «  See  Article  14. 


TOWARDS   NEUTRAL  STATES  623 

soon  as  they  cross  the  frontier  and  retaining  them  in  honor- 
able detention  till  the  conclusion  of  the  war.  This  is  called 
interning,  and  the  troops  so  treated  are  said  to  be  interned. 
They  are  bound  to  submit  to  the  process  and  to  make  no 
attempt  to  compromise  the  neutrality  of  the  state  in  which 
they  find  asylum.  The  expenses  to  which  it  is  put  in 
consequence  of  their  presence  should  be  repaid  by  their  own 
government.1  The  last  example  of  internment  occurred  in 
1871,  when  eighty-five  thousand  ragged  and  starving  French 
troops,  the  wreck  of  Bourbaki's  army,  took  refuge  within  the 
Swiss  frontier  from  the  pursuit  of  Manteuffel  in  the  closing 
days  of  the  Franco-German  War.  They  received  permission 
to  cross  it  by  special  convention  between  their  commander, 
General  Clinchant,  and  the  Swiss  General  Herzog,  and  were 
at  once  disarmed,  clothed  and  fed,  by  the  orders  of  the  central 
government  of  the  Helvetic  Republic.  At  the  conclusion  of 
peace  they  returned  to  France  under  an  agreement  between 
the  two  countries  which  provided  for  the  payment  by  the 
latter  of  a  lump  sum  to  defray  the  costs  to  which  the  adminis- 
tration and  citizens  of  Switzerland  had  been  put  in  conse- 
quence of  their  presence.2 

In  sea  warfare  practice  favors  admission  under  conditions, 
instead  of  exclusion.  Unless  a  neutral  expressly  forbids  the 
entry  of  belligerent  war-ships,  they  may  freely  enjoy  the 
hospitality  of  its  ports  and  waters.  Permission  is  assumed 
in  the  absence  of  any  notice  to  the  contrary,  but  nevertheless 
it  is  a  privilege  based  upon  the  consent  of  the  neutral,  and 
therefore  capable  of  being  accompanied  by  conditions  or 
withdrawn  altogether  as  a  punishment  for  illegal  conduct.3 
Moreover,  a  rule  of  absolute  exclusion  may  be  adopted  as  long 
as  it  is  applied  to  each  of  the  combatants,  the  latest  instance 
being  that  afforded  by  the  Scandinavian  powers  in  the  Russo- 

1  See  Fifth  Hague  Convention  of  1907,  Articles  11, 12. 

2  Fyffe,  Modern  Europe,  vol.  Ill,  462;  Annual  Register  for  1871,  pp.  160, 
161;  Calvo,  Droit  International,  §  2336. 

8  Thirteenth  Hague  Convention  of  1907,  Article  9. 


624  THE  DUTIES   OF   BELLIGERENT   STATES 

Japanese  War.1  Belligerent  commanders  can  demand  that 
they  shall  not  be  asked  to  submit  to  unjust  and  unreasonable 
restraints,  and  that  whatever  rules  are  made  shall  be  enforced 
impartially  on  both  sides.  But  further  they  cannot  go. 
Where  they  enter  on  sufferance  they  must  respect  the  wishes 
of  those  who  permit  their  presence.  Only  when  their  vessels 
are  driven  by  stress  of  weather,  or  otherwise  reduced  to  an 
unseaworthy  condition,  can  they  insist  on  admission  as  a 
matter  of  strict  law.  Their  right  to  shelter  under  such  cir- 
cumstances is  called  the  Right  of  Asylum,  and  cannot  be  re- 
fused by  a  neutral  without  a  breach  of  international  duty. 

In  recent  times  many  states  have  issued  neutrality  regula- 
tions at  the  beginning  of  wars  in  which  they  were  not  engaged, 
while  others  have  preferred  to  deal  with  each  case  as  it  arose. 
Rules  have  thus  grown  up  as  to  the  length  of  stay  allowed  to 
belligerent  war-ships  in  neutral  ports,  the  amount  of  coal  and 
provisions  they  may  take  in,  the  conditions  on  which  they 
may  execute  repairs,  and  hosts  of  other  matters.  The  most 
important  of  them  will  be  discussed  when  we  deal  with  the 
duties  of  neutral  states.2  We  shall  then  see  that  some  of 
these  regulations  have  become,  and  others  are  becoming,  rules 
of  International  Law.  Here  we  must  be  content  to  assert  as 
strongly  as  possible  that  obedience  is  due  to  them  all,  on 
condition  of  their  steady  and  impartial  administration. 

§  233 
Every  belligerent  lays  under  a  strong  obligation 

To  make  reparation  to  any  state  whose  neutrality  it  may  have 

violated. 

International  law  contains  no  precise  rules  as  to  the  exact 
form  which  such  reparation  should  take.  It  certainly  re- 
quires the  restoration  of  property  illegally  captured,  when 
ships  or  goods  have  been  seized  within  neutral  jurisdiction ; 

1  Lawrence,  War  and,  Neutrality  in  the  Far  East,  2d  ed.,  pp.  133, 134. 

2  See  §  236. 


TOWARDS   NEUTRAL  STATES  625 

but  it  does  not  go  further  and  prescribe  the  scale  on  which 
indemnities  should  be  calculated,  or  the  wording  of  apologies, 
or  the  forms  to  be  used  in  paying  ceremonial  (5>  T°  m»*e 

,  ,,         a  £    ,1        .     .  ,  rr>i  reparation  to  any 

honors  to  tne  nag  01  the  injured  state,      lliese  state  whose  neu- 


details  are  left  to  be  settled  by  negotiation  at 
the  time  ;  and  all  we  are  able  to  say  about  the  matter  is  that 
the  reparation  should  be  adequate,  and  proportioned  to  the 
gravity  of  the  offence.  In  all  cases  it  must  be  made  to  the 
injured  neutral,  whose  duty  it  is  to  deal  with  the  other 
belligerent  if  loss  has  fallen  upon  him  in  consequence  of  the 
violence  complained  of.  For  instance,  when  the  commander 
of  a  ship  of  war  seizes  a  vessel  belonging  to  his  enemy  in 
neutral  waters,  the  neutral  government  demands  from  the 
country  of  the  offender  the  surrender  of  the  prize  or  takes 
possession  of  it  if  it  is  within  the  jurisdiction,  and  after 
having  obtained  control  of  it,  restores  it  to  the  original 
belligerent  owner,  either  by  administrative  act  or  through 
the  machinery  of  a  prize  court.  If  the  neutral  state  is  un- 
able or  unwilling  to  obtain  satisfaction  from  the  offending 
belligerent,  serious  complications  are  likely  to  follow.  It 
exposes  itself  to  the  risk  of  similar  outrages  from  the  injured 
side.  Claims  for  indemnity  may  be  made  against  it,  and  it 
may  even  be  threatened  with  war. 

Violations  of  neutrality  by  a  belligerent  may  take  as  many 
forms  as  the  duties  they  contravene.  Like  other  offences 
they  may  be  gross  or  slight,  committed  in  heedlessness  and 
hot  blood  or  carefully  planned  and  executed  according  to  a 
predetermined  method.  They  are  generally  the  unauthorized 
acts  of  over-zealous  or  unscrupulous  subordinates.  The  ap- 
propriate reparation  varies  from  a  formal  apology  to  a  serious 
humiliation.  In  important  cases  the  matter  is  brought  by 
diplomatic  complaint  before  the  government  of  the  offending 
state  ;  and  it  is  expected  to  undo  the  wrong  as  far  as  possible, 
punish  the  perpetrators,  and  give  whatever  satisfaction  is 
deemed  just  and  proper.  A  good  example  of  executive 
action  is  afforded  by  the  case  of  the  Florida,  one  of  the  Con- 


626  THE  DUTIES   OF   BELLIGERENT  STATES 

federate  cruisers  in  the  American  Civil  War.  In  October, 
1864,  she  was  seized  in  the  neutral  Brazilian  port  of  Bahia 
by  the  Federal  steamer  Wachusett  and  brought  as  a  prize  to 
the  United  States.  Brazil  at  once  demanded  reparation,  and 
the  government  of  Washington  disavowed  the  act.  Full 
satisfaction  was  offered  by  Mr.  Seward,  then  Secretary  of 
State.  The  commander  of  the  Wachusett  was  tried  by  court- 
martial  ;  the  United  States  consul  at  Bahia,  who  had  advised 
the  attack,  was  dismissed ;  the  Brazilian  flag  was  saluted  on 
the  spot  where  the  capture  took  place ;  and  the  crew  of  the 
captured  vessel  were  set  at  liberty.  The  Florida  herself, 
ought,  it  was  admitted,  to  have  been  delivered  over  to  the 
Brazilian  authorities ;  but  she  was  run  into  and  sunk  in 
Hampton  Roads  by  a  Federal  transport,  and  it  was  therefore 
impossible  to  restore  her.1 

It  is  sometimes  held  that  states  engaged  in  hostilities 
possess  a  right  to  make  use  of  and  even  destroy  vessels 
and  other  property  belonging  to  neutral  individuals  and 
found  within  the  limits  of  belligerent  authority,  if  the  exi- 
gencies of  warfare  render  such  use  or  destruction  a  matter  of 
great  and  pressing  importance.  This  real  or  supposed  right 
is  called  droit  dangarie  or  jus  angariw,  which  has  been 
anglicized  into  angary.  Now  that  the  Hague  Conference  of 
1907  has  decided  that  payment  must  be  made  even  for 
requisitions  levied  on  subjects  of  the  hostile  state,2  it  can 
hardly  be  contended  that  neutral  property  permanently 
situated  in  a  belligerent  country  can  be  seized  without  com- 
pensation, if  only  it  is  urgently  required  for  warlike  purposes. 
The  claim  refers  to  such  property  when  temporarily  within 
the  belligerent's  control,  the  usual  case  being  that  of  neutral 
merchantmen  found  in  a  belligerent's  own  ports  or  ports 
under  his  military  occupation.  The  seizure  of  such  vessels 
and  their  use  for  purposes  of  transport  was  not  uncommon 

1  Moore,  International  Law  Digest,  Vol.  VII,  p.  1090;  Wheaton,  Interna- 
tional Law  (Dana's  ed.),  note  209. 

2  Seglement  with  regard  to  Land  Warfare,  Article  62. 


TOWARDS  NEUTRAL  STATES  627 

in  the  seventeenth  century  or  altogether  unknown  in  the 
eighteenth.  Some  authorities  regard  it  as  possible  even 
to-day.1  But  the  whole  trend  of  recent  international  action 
shows  that  it  is  obsolete  in  its  most  vexatious  form  of  a 
wholesale  embargo  on  neutral  shipping.  No  recent  case  of 
such  a  high-handed  proceeding  is  to  be  found.  Treaty  after 
treaty  forbids  it.  The  assertion  of  the  so-called  right  is 
always  coupled  with  an  admission  that  compensation  must 
be  made  for  its  exercise.  We  may  imagine  how  fiercely  it 
might  be  resented,  if  we  contemplate  for  a  moment  what 
would  be  the  consequences  of,  say,  the  seizure  by  the  United 
States  government  of  all  the  liners  in  the  port  of  New  York 
in  order  to  carry  to  its  destination  an  expedition  against 
a  Central  American  Republic  hastily  planned  in  a  sudden 
emergency.  Half  the  civilized  world  would  suffer,  and 
the  other  half  would  make  common  cause  with  it.  Even 
the  milder  manifestations  of  the  power  to  seize  are  looked  on 
askance,  and  provoke  so  much  controversy  that  belligerent 
states  will  be  unwilling  to  resort  to  them  in  future.  The 
last  instance  bears  out  this  view.  In  1870  the  Germans 
sank  six  English  colliers  in  the  Seine  at  Duclair  to  stop  the 
advance  up  the  river  of  some  French  gunboats.  Compensa- 
tion was  demanded,  and  after  some  hesitation  given ;  and 
the  act  was  excused  on  the  ground  that  the  danger  was 
pressing  and  could  not  be  met  in  any  other  way.2  A  pro- 
vision made  by  the  Second  Hague  Conference  with  regard 
to  neutral  railway  material  found  by  an  invader  in  occupied 
territory  points  in  the  same  direction.  It  is  not  to  be 
"requisitioned  or  utilized  by  a  belligerent  except  in  the 
case  of,  and  to  the  extent  required  by,  absolute  necessity." 
When  seized  it  is  to  be  put  back  as  soon  as  possible,  and 
meanwhile  the  neutral  has  the  right  of  making  a  correspond- 
ing seizure  of  rolling  stock  coming  from  the  territory  of  the 
belligerent.  Moreover,  compensation  is  to  be  paid  on  both 

1  Perels,  Seerecht,  §  40 ;   U.  S.  Naval  War  Code,  Article  6. 

2  Annual  Register,  1870,  p.  110. 


628  THE  DUTIES   OF   BELLIGERENT   STATES 

sides.1  If  in  land  warfare,  when  it  lias  hitherto  been  the 
custom  to  lay  hands  on  all  the  transport  within  reach  with- 
out drawing  nice  distinctions  as  to  its  ownership,  the  practice 
is  now  surrounded  with  the  closest  restrictions,  there  is  little 
to  be  said  for  it  in  maritime  struggles,  where  the  difference 
between  neutral  and  belligerent  property  has  always  been 
sharply  accentuated.  Moreover,  it  is  difficult  to  see  why 
vessels  alone  should  be  taken.  Why  not  specie  also,  or 
cargoes  of  arms  and  ammunition,  or  indeed  anything  the 
belligerent  is  in  need  of  for  warlike  purposes  ?  The  practice, 
if  good  at  all,  is  good  for  whatever  an  army  or  navy  may 
require.  But  in  truth  it  is  so  indefensible  that  it  is  now 
scarcely  defended.  Belligerents  must  make  war  with  their 
own  resources  and  what  they  can  capture  from  the  enemy, 
not  with  neutral  property  which  is  unfortunate  enough  to  be 
for  the  moment  in  their  power.  Extreme  need  may  excuse 
small  seizures,  just  as  it  excuses  small  violations  of  neutral 
territory ;  but  the  act  is  nevertheless  an  offence,  and  as  such 
requires  atonement  —  great  or  slight  according  to  the  cir- 
cumstances of  the  case.  In  the  vigorous  words  of  Dana,2 
angary  "is  not  a  right  at  all,  but  an  act  resorted  to  from 
necessity,  for  which  apology  and  compensation  must  be  made 
at  the  peril  of  war."3 

1  Fifth  Convention  of  the  Hague  Conference  of  1907,  Article  19. 

2  Note  152  to  Wheaton's  International  Law. 

3  For  the  text  of  the  Fifth  and  Thirteenth  Conventions  of  the  Second 
Hague  Conference,  to  which  constant  reference  has  been  made  throughout 
this  Chapter,   see  Higgins,   The  Hague  Peace    Conferences,   pp.  281-289, 
446-456  ;  Scott,  The  Hague  Peace  Conferences,  vol.  II,  pp.  400-414,  506-523  ; 
Whittuck,  International  Documents,  pp.  143-150,  208-217  ;  and  Supplement 
to  the  American  Journal  of  International  Law,  117-127,  202-216. 


CHAPTER  III 


§234 

SOME  of  the  rules  which  prescribe  the  duties  of  neutral 
states  in  their  dealings  with  belligerent  members  of  the  family 
of  nations  are  perfectly  clear,  while  others  are  Duties  of  neutral 
indefinite  and  uncertain.  The  number  of  the  ^^117" 
former  has  been  increased  of  late  owing  to  the  flveheads- 
acceptance  by  the  great  majority  of  civilized  powers  of  the  pro- 
visions contained  in  the  two  Conventions  on  state  neutrality 
negotiated  at  the  Hague  in  1907.  But  even  in  these  Conven- 
tions much  was  left  to  the  discretion  of  neutral  powers,  and 
there  still  remain  numbers  of  undecided  questions  as  to  which 
it  is  impossible  to  forecast  the  action  of  governments  with 
any  degree  of  confidence,  since  opinions  disagree  and  practices 
vary.  The  only  fruitful  way  of  dealing  with  the  matter  is 
to  follow  the  example  of  Professor  Holland,1  and  attempt  a 
classification  of  the  duties  of  neutral  states.  We  will  add  to 
his  three  main  divisions  two  others,  and  consider  the  subject 
under  the  five  heads  of  duties  of  abstention,  duties  of  preven- 
tion, duties  of  acquiescence,  duties  of  restoration,  and  duties 
of  reparation.  Under  each  head  we  will  endeavor  to  distin- 
guish carefully  between  what  is  matter  of  undoubted  obliga- 
tion and  what  rest  only  upon  disputed  views  of  justice  and 
expediency. 

1  See  his  address  to  the  British  Academy  on  Neutral  Duties  in  a  Maritime 
War. 

629 


630  THE  DUTIES   OF   NEUTRAL  STATES 

§235 

We  will  begin  by  a  consideration  of  the  Duties  of  abstention 
which  a  neutral  state  is  called  on  to  fulfil  in  time  of  war. 
(i)  Duties  of  Foremost  among  them  comes  the  long-recognized 
obligation  of  refraining  from  the  grant  of  armed 
assistance  to  either  side.  We  have  already  traced  the  steps 
whereby  it  became  generally  admitted  that  a  neutral  cannot 
under  any  pretext  assist  either  belligerent  with  troops  or 
ships ; 1  and  as  there  is  no  disposition  to  dispute  or  ignore 
the  established  rule,  we  need  not  refer  to  it  further. 

A  neutral  must  also  refrain  from  giving  to  one  side  in  matters 
connected  with  hostilities  privileges  which  it  denies  to  the  other. 
Covenants  to  grant  exclusive  rights  were  at  one  time  very 
common  ;  but  they  accorded  so  ill  with  the  enlarged  concep- 
tions of  neutral  duty  which  found  favor  at  the  end  of  the 
eighteenth  century  that  states  escaped  from  them  as  soon  as 
possible,  and  refused  in  future  to  enter  into  similar  arrange- 
ments. A  good  example  may  be  found  in  the  troubles  that 
arose  with  regard  to  the  seventeenth  and  twenty -second  ar- 
ticles of  the  treaty  of  1778  between  France  and  the  United 
States.2  They  gave  to  French  ships  of  war  and  privateers 
the  exclusive  privilege  of  bringing  their  prizes  into  American 
ports,  and  provided  that  privateers  of  any  nation  at  war  with 
France  should  be  forbidden  to  sell  their  prizes  or  other  mer- 
chandise therein,  or  buy  more  provisions  than  were  necessary 
to  enable  them  to  reach  the  nearest  port  of  their  own  country, 
whereas  the  privateers  of  France  were  free  to  do  all  these 
things.  In  the  war  between  England  and  France  which  broke 
out  in  1793  Washington's  administration  encountered  strong 
complaints  from  Great  Britain  of  preferential  treatment  ac- 
corded to  her  enemy,  and  was  seriously  hampered  in  its  ef- 
forts to  preserve  a  strict  neutrality  by  treaty  obligations  from 
which  it  could  not  escape.  Negotiations  for  release  were  not 

1  See  §  223.  a  Treaties  of  the  United.  States,  pp.  301-303. 


TOWARDS   BELLIGERENT  STATES  631 

successful  till  the  end  of  the  century,1  when  the  objectionable 
stipulations  of  1778  were  dropped  in  the  Convention  of  1800.2 
The  United  States  were  henceforth  free  to  hold  the  balance 
even  between  warring  powers,  and  other  nations  have  ob- 
tained for  themselves  a  similar  liberty.  At  the  present  time 
a  neutrality  conducted  on  the  contrary  principle  would  not 
be  tolerated.  This  applies  even  to  services  of  humanity. 
For  instance,  the  reception  in  a  neutral  port  of  a  vanquished 
warship  closely  pursued  by  a  victorious  enemy  might  prevent 
a  capture  on  the  point  of  being  effected,  and  should  not  be 
allowed  unless  the  defeated  vessel  was  in  immediate  danger 
of  sinking. 

Another  duty  laid  on  neutral  states  is  to  abstain  from 
giving  or  lending  money,  or  giving  or  selling  instruments  and 
munitions  of  war,  to  either  belligerent.  With  regard  to  money, 
there  is  universal  agreement  that  giving  and  lending  are  on 
the  same  legal  footing,  and  the  guarantee  by  a  neutral  power 
of  a  loan  issued  by  a  belligerent  would  be  equally  objection- 
able. Yet  individuals  may  do  what  their  governments  may 
not  do,  in  this  respect  as  in  many  others.  Money  is  a  form 
of  merchandise,  and  neutral  subjects  may  trade  in  it ;  though 
if  they  send  to  one  belligerent  specie  or  negotiable  securities, 
the  cruisers  of  the  other  may  capture  them  on  their  voyage 
as  being  contraband  of  war.  But  neutral  governments  are 
in  no  way  bound  to  prevent  their  subjects  from  taking  stock 
in  loans  issued  by  belligerents.  No  war  of  any  magnitude 
runs  its  course  without  a  resort  to  neutral  money  markets. 
Gifts  by  neutral  subjects  to  the  war  chest  of  a  foreign  com- 
batant are  violations  of  International  Law ; 3  but  if  ordinary 
prudence  were  observed  by  the  donors,  it  would  be  almost 
impossible  to  bring  the  offence  home  to1  them.  With  regard 
to  the  gift  or  sale  of  war  material  the  duty  of  a  neutral  state 
is  equally  clear.  The  Second  Hague  Conference  summarized 

i  Wharton,  International  Law  of  the  United  States,  Vol.  II,  pp.  134-142. 

8  Treaties  of  the  United  States,  pp.  322-331. 

»  Halleck,  International  Law,  Baker's  4th  ed.,  Vol.  II,  p.  186  note. 


632  THE  DUTIES  OF  NEUTRAL   STATES 

accepted  law  in  the  words,  "The  supply  in  any  manner, 
directly  or  indirectly,  by  a  neutral  power  to  a  belligerent 
power,  of  warships,  ammunition,  or  war  material  of  any  kind 
whatever,  is  forbidden."1  But  it  is  to  be  noted  that,  when 
two  powers  are  at  peace,  either  is  quite  free  to  sell  a  war-ship 
to  the  other.  Thus  the  purchase  at  the  end  of  1903  by 
Japan  from  Argentina  of  the  two  powerful  cruisers  after- 
wards called  the  Nisshin  and  the  Kasuga  was  perfectly  legal, 
because  the  transaction  was  completed  before  the  outbreak 
of  the  war  with  Russia  early  in  1904. 2  But  had  hostilities 
commenced  before  the  negotiations  were  finished,  the  Argen- 
tine government  would  have  been  bound  to  refuse  delivery 
till  after  the  conclusion  of  peace.  The  question  whether  a 
neutral  government  is  under  an  obligation  to  discontinue 
public  sales  by  auction  of  old  warlike  stores  because  belliger- 
ent agents  are  likely  to  purchase  them,  was  raised  in  1870, 
when  France  bought  largely  at  American  sales  during  her 
war  with  Germany.  A  committee  of  the  United  States 
Senate  reported  in  favor  of  the  action  of  the  executive.3 
But  the  subsequent  growth  of  opinion  has  been  in  the  direc- 
tion of  greater  carefulness,  and  in  all  probability  a  different 
course  would  be  pursued  were  the  circumstances  to  recur. 
Indeed,  the  wording  of  the  Hague  Article  quoted  above 
seems  decisive.  It  forbids  the  supply  of  such  things  as  we 
are  considering  "  indirectly "  as  well  as  "  directly "  ;  and 
there  can  be  no  doubt  that  a  large  proportion  of  the  cannon 
and  rifles  sent  from  New  York  to  France  in  1870  came  indi- 
rectly through  the  hands  of  agents  from  the  stores  of  the 
American  government.  But  the  duty  of  the  neutral  govern- 
ment in  these  matters  ends  with  the  regulation  of  its  own 
proceedings.  It  need  not  attempt  to  control  its  subjects. 
The  Hague  Conference  of  1907  laid  down  in  two  separate 

1  Convention  of  1907  concerning  Neutral  Rights  and  Duties  in  Maritime 
War,  Article  6. 

2  Lawrence,  War  and  Neutrality  in  the  Far  East,  2d.  ed.,  p.  179. 

8  Wharton,  International  Law  of  the  United  8tateat  vol.  Ill,  pp.  612,  613. 


TOWARDS  BELLIGERENT  STATES  633 

Conventions *  that  "  a  neutral  power  is  not  bound  to  prevent 
the  export  or  transit,  on  behalf  of  one  or  the  other  of  the 
belligerents,  of  arms,  munitions  of  war,  or  in  general  of  any- 
thing that  can  be  of  use  to  an  army  or  fleet." 

§  236 

The  next  of  the  heads  under  which  we  classify  the  duties 
of  neutral  states  may  be  described  as 

Duties  of  Prevention. 

It  will  be  found  to  include  more  controverted  questions 
than  any  of  the  others.  Roughly  speaking,  the  (2)  Duties  of 
neutral  is  bound  to  prevent  within  its  jurisdic-  Prevention- 
tion  what  the  belligerent  is  bound  to  abstain  from  doing 
therein.  But  though  this  statement  is  accurate  as  far  as  it 
goes,  it  is  by  no  means  exhaustive  ;  for  neutral  governments 
are,  as  we  shall  see,  obliged  by  International  Law  to  exert 
themselves  in  order  to  stop  the  consummation  of  certain  acts 
when  done  by  private  individuals  on  their  own  initiative. 
And  in  all  cases  their  action  must  be  strong  and  resolute, 
not  weak  and  perfunctory.  Various  attempts  have  been 
made  to  define  or  describe  the  standard  of  vigilance  expected 
from  them.  By  the  Treaty  of  Washington  of  1871  three 
rules  were  laid  down,  whereby  Great  Britain  consented  to  be 
judged  in  the  Arbitration  on  what  were  known  generically  as 
the  Alabama  Claims.  The  first  and  third  of  these  declared 
it  to  be  the  duty  of  a  neutral  state  to  use  "  due  diligence  " 
in  order  to  prevent  various  violations  of  its  neutrality.2  Im- 
mediately a  controversy  arose  as  to  the  true  meaning  of  the 
phrase.  Great  Britain  contended  that  due  diligence  "  signi- 
fies that  measure  of  care  which  the  government  is  under  an 
obligation  to  use  for  a  given  purpose,"3  —  an  explanation 

1  See  the  Fifth  Convention,  Article  7,  and  the  Thirteenth  Convention, 
Article  7. 

2  Treaties  of  the  United  States,  p.  481. 

8  British  Parliamentary  Papers,  North  America,  No.  1  (1872),  p.  24. 


634  THE   DUTIES   OF  NEUTRAL  STATES 

which  fails  conspicuously  to  explain.  The  United  States, 
that  it  must  be  a  diligence  "  commensurate  with  the  emer- 
gency or  with  the  magnitude  of  the  results  of  negligence  "  1 
—  an  explanation  which  imposes  a  variable  standard.  The 
Arbitrators  decided  that  it  must  be  a  diligence  exercised  by 
neutrals  "  in  exact  proportion  to  the  risks  to  which  either  of 
the  belligerents  may  be  exposed  from  a  failure  to  fulfil  the 
obligations  of  neutrality  on  their  part"2  —  an  explanation 
which  destroys  impartiality.  Much  has  been  written  on  the 
subject  since  the  award  was  given  in  1872,  but  an  authorita- 
tive standard  of  due  diligence  remains  to  be  found.  The 
attempt  to  find  it  was  abandoned  by  the  Second  Hague  Con- 
ference when  it  negotiated  its  Convention  concerning  the 
Rights  and  Duties  of  Neutral  Powers  in  Maritime  War. 
The  eighth  article,  which  reproduces  with  a  few  verbal 
changes  the  first  of  the  three  rules  of  the  Treaty  of  Wash- 
ington, alters  the  words  "  A  neutral  government  is  bound  to 
use  due  diligence  "  into  "  A  neutral  government  is  bound  to 
use  the  means  at  its  disposal,"  and  a  similar  phrase  occurs  in 
the  twenty-fifth  article.  Whether  the  substitute  will  prove 
more  satisfactory  than  the  original  remains  to  be  seen.  Let 
us  suppose  for  a  moment  that  the  law  of  a  neutral  state  is 
lax  in  this  particular,  and  confers  on  its  government  insuffi- 
cient means  of  maintaining  neutrality.  How  would  its  Min- 
ister of  Foreign  Affairs  meet  the  argument  of  the  aggrieved 
belligerent  that  a  state  is  bound  to  arm  its  executive  officers 
with  powers  sufficient  to  enable  them  to  perform  the  obliga- 
tions imposed  on  it  by  International  Law  ?  The  zeal  and 
vigilance  required  in  such  cases  should,  we  venture  to  sug- 
gest, be  the  same  as  that  which  a  well-governed  state  applies 
to  its  own  internal  affairs. 

We  must  now  pass  onto  deal  with  the  various  matters  that 
fall  under  the  head  of  duties  of  prevention.  We  begin  by 
laying  down  the  proposition  that  it  is  the  duty  of  a  neutral 

1  British  Parliamentary  Papers,  North  America,  No.  2  (1872),  p.  43. 

2  British  Parliamentary  Papers,  North  America,  No.  2  (1873),  p.  2. 


TOWARDS   BELLIGERENT   STATES 

state  to  prevent  the  use  of  any  part  of  its  territory  for  the  naval 
or  military  operations  of  the  belligerents,  or  the  fitting  out  there- 
in or  departure  therefrom  of  warlike  expeditions  organized  in  the 
interests  of  a  belligerent.  The  prevention  of  actual  fighting 
is  so  rudimentary  an  obligation  that  it  is  not  necessary  to  en- 
large on  it.  The  only  statement  that  need  be  made  here  is 
that  the  vast  extension  in  recent  times  of  colonial  dominions 
and  protectorates  renders  it  impossible  for  expansive  states 
to  police  their  remoter  waters  with  the  same  efficiency  as  is 
expected  and  afforded  in  their  home  territory.  Therefore 
the  measure  of  care  required  of  the  United  States,  for  in- 
stance, in  the  more  distant  islands  of  the  Philippine  group, 
or  of  Germany  along  the  coast  of  Kaiser  Wilhelm's  Land, 
ought  to  be  less  than  would  be  demanded  in  Maine  or 
Pomerania.  But  doubtless  the  standard  will  be  raised  as  the 
possibility  of  effective  control  extends,  and  it  will  be  held 
that  increased  vigilance  should  result  from  increased  means, 
not  only  as  to  actual  fighting,  but  also  as  to  all  matters  a 
neutral  state  ought  to  stop  or  regulate.  Among  the  uses  of 
its  territory  a  neutral  is  bound  to  prevent  must  be  reckoned 
the  setting  up  in  it  of  a  belligerent  prize  court,  and  the  pas- 
sage of  the  land  forces  of  a  belligerent  across  any  portion  of 
its  soil.  The  former  is  expressly  forbidden  by  the  thir- 
teenth Hague  Convention  of  1907  and  the  latter  by  the 
fifth.1  The  necessary  exceptions  in  favor  of  interned  troops  and 
convoys  of  wounded  ha  ve  aready  been  considered.2  The  definite 
prohibition  in  a  great  law-making  document  of  the  passage  of 
troops  through  neutral  territory  puts  an  end  to  a  controversy 
which  has  lasted  from  the  days  of  Grotius,  who  upheld  a  right  of 
passage,3  to  recent  times  when  the  great  majority  of  writers 
denied  it.  The  question  is  on  a  very  different  footing  as  far  as 
marginal  waters  are  concerned.  In  discussing  rights  over  them 
we  came  to  the  conclusion  that  territorial  powers  were  bound 
to  allow  passage  to  all  vessels  of  states  with  which  they  were 

i  See  Articles  4  and  2  respectively.  2  See  §§  165,  232. 

»  De  Jure  Belli  ac  Pads,  bk.  II,  chs.  ii,  xiii,  and  bk.  Ill,  ch.  xvii,  2. 


636  THE  DUTIES   OF   NEUTRAL   STATES 

at  peace,  when  such  waters  were  channels  of  communication 
between  two  portions  of  the  high  seas.1  This  right  of  innocent 
passage  belongs  to  war-ships  as  well  as  to  private  vessels. 
But  it  is  maintained  in  some  quarters  that  the  right  of  a 
neutral  government  to  exclude  the  fighting  vessels  of  bellig- 
erents from  its  ports  and  waters  involves  a  right  to  deny 
them  even  innocent  passage.  The  only  point  absolutely  clear 
is  that  a  neutral  power  may  not  close  a  narrow  strait  uniting 
two  open  seas,  even  though  it  possesses  territorial  sovereignty 
over  the  entire  passage.2  The  Second  Hague  Conference 
contented  itself  with  the  cautious  pronouncement  that  "  the 
neutrality  of  a  power  is  not  affected  by  the  mere  passage 
through  its  territorial  waters  of  war-ships  or  prizes  belonging  to 
belligerents."8  With  regard  to  warlike  expeditions,  and  the 
use  of  neutral  land  or  water  for  the  purpose  of  organizing  them 
and  fitting  them  out,  the  conclusions  we  came  to  in  the  previous 
chapter  as  to  belligerent  duty  have  a  direct  application  here. 
What  the  belligerent  may  not  do  in  this  respect  the  neutral 
must  restrain  him  from  doing  if  he  makes  the  attempt.  And 
the  duty  extends  to  private  persons  who  endeavor  to  fit  out 
such  expeditions  on  their  own  responsibility,  as  well  as  to  the 
belligerent  state  and  its  avowed  agents.  It  also  covers  single 
ships.  They  are  treated  as  warlike  expeditions,  if  they  are 
adapted  for  warlike  uses  and  prepared  for  the  purpose  of 
making  war  in  the  interests  of  one  belligerent  against  the 
other.  In  that  case  the  neutral  government  is  under  an 
obligation  to  detain  them.  An  instance  of  the  strict  observ- 
ance of  this  obligation  which  is  now  common  is  to  be  found  in 
the  action  of  the  British  government  with  regard  to  the 
Somers,  a  torpedo  boat  under  construction  in  England  when 
the  Hispano- American  War  broke  out  in  May,  1898.  It 
had  been  purchased  by  the  United  States  about  two  months 
before,  and  in  consequence  its  departure  from  British  juris- 

1  See  §  88. 

2  Higgins,  The  Hague  Peace  Conferences,  pp.  467-469. 
8  The  Thirteenth  Convention  of  1907,  Article  10. 


TOWARDS    BELLIGERENT   STATES  637 

diction  was  prohibited.1  The  duty  of  a  neutral  power  in 
the  connection  is  set  forth  in  the  thirteenth  Hague  Conven- 
tion of  1907,  which  declares  that  it  "  is  bound  to  employ  the 
means  at  its  disposal  to  prevent  the  fitting  out  or  arming  of 
any  vessel  within  its  jurisdiction  which  it  has  reason  to  be- 
lieve is  intended  to  cruise  or  engage  in  hostile  operations 
against  a  power  with  which  that  government  is  at  peace." 
And  further,  the  turning  of  a  previously  harmless  vessel  into 
one  suitable  for  hostilities  is  aimed  at  in  the  words  which 
declare  that  a  neutral  government  is  under  obligation  to  use 
all  necessary  vigilance  "  to  prevent  the  departure  from  its 
jurisdiction  of  any  vessel  intended  to  cruise,  or  engage  in 
hostile  operations,  which  has  been  adapted  in  whole  or  in 
part  within  the  said  jurisdiction  to  warlike  purposes."  2  These 
clauses  bristle  with  contentious  matter.  They  adopt  the  test 
of  intent,  which  it  is  exceedingly  difficult  to  apply.  They 
leave  the  phrase  " fitting  out"  unexplained.  They  do  not 
say  whether  "  arming  "  requires  an  armament  so  complete  that 
the  vessel  is  ready  to  commence  hostilities  at  once,  or  whether 
the  reception  on  board  of  a  few  weapons  would  be  sufficient. 
These  and  other  questions  for  years  vexed  the  peace  of  Great 
Britain  and  the  United  States  in  the  long  controversy  which 
arose  over  the  proceedings  of  the  Alabama  and  her  sister 
cruisers.  Problems  similar  to  them  will  no  doubt  arise  in 
future,  and  in  addition  the  position  of  fleet  auxiliaries,  such 
as  colliers  and  repair-ships,  will  have  to  be  seriously  con- 
sidered. When  the  time  comes  we  may  hope  an  International 
Prize  Court  will  be  in  existence  and  ready  to  give  them  an 
authoritative  solution. 

The  duty  of  neutral  states  to  prevent  recruitment  within 
their  territory  for  the  naval  or  military  forces  of  a  belligerent 
must  be  considered  next.  The  second  Hague  Conference 
forbade  belligerent  war-ships  to  complete  their  crews  in 
neutral  waters,3  and  for  more  than  a  century  neutral  govern- 

1  U.  S.  Naval  War  College,  International  Lavs  Situations,  1901,  p.  145. 

2  See  Article  8.  8  Thirteenth  Hague  Convention  of  1907,  Article  18. 


638  THE   DUTIES   OF  NEUTRAL  STATES 

ments  have  recognized  an  obligation  to  prevent  anything  of 
the  kind.  The  United  States  made  an  exception  in  their 
Foreign  Inlistment  Act  of  1818  in  favor  of  subjects  of  the 
state  owning  the  vessel,  if  they  were  transiently  in  American 
territory.  But  in  the  British  Acts  of  1819  and  1870  the  pro- 
hibition was  universal.  In  this  form  it  has  won  through 
usage  admission  into  International  Law,  with  the  addition 
that  neutrals  are  bound  to  enforce  it.  They  are  also  bound 
to  prevent  recruitment  of  men  for  the  forces  of  either  bellig- 
erent in  their  land  territory.  Agencies  for  that  purpose 
may  not  be  opened,  nor  corps  of  combatants  formed.1  The 
pronouncement  of  the  Second  Hague  Conference  in  this  sense 
registered  the  triumph  of  an  enlightened  opinion  which  had 
been  gathering  force  for  two  hundred  years.  Vattel  in  the 
middle  of  the  eighteenth  century  surrounded  with  conditions 
the  old  freedom  on  the  part  of  the  neutral  to  permit  bellig- 
erent levies  in  its  territory.2  After  him  came  publicists 
who  condemned  such  permission  in  any  circumstances. 
Gradually  the  practice  ceased  in  its  cruder  form ;  but  the 
rulers  of  small  states  sometimes  covenanted  to  supply  larger 
powers  with  a  certain  number  of  soldiers.  At  length  in 
1859  Switzerland,  the  last  state  to  maintain  contingents  in 
foreign  armies,  consented  under  pressure  to  restrain  its 
citizens  from  taking  military  service  in  foreign  countries  and 
punish  foreigners  who  attempted  to  enroll  Swiss  contingents.3 
Since  then  there  have  been  cases  when  under  the  influence 
of  popular  enthusiasm  for  a  great  cause  governments  have 
winked  at  the  departure  of  their  subjects  openly  and  in  con- 
siderable numbers  in  order  to  enlist  abroad  among  its  de- 
fenders. Neglect  to  stop  such  proceedings  when  an  armed 
conflict  is  in  progress  is  an  undoubted  breach  of  neutral  duty. 

1  Fifth  Hague  Convention  of  1907,  Articles  4,  5. 

2  Droit  des  Gens,  bk.  Ill,  §  110. 

8  Halleck,  International  Law,  Baker's  4th  ed.,  vol.  II,  p.  8  note  2  ;  Bury, 
La  Neutralite  de  la  Suisse  in  the  Revue  de  Droit  International,  vol.  IT, 
pp.  636-642. 


TOWARDS   BELLIGERENT   STATES  639 

But  a  state  cannot  be  expected  to  prevent  the  secret  departure 
of  a  few  individuals. 

We  now  pass  on  to  a  consideration  of  the  duty  incumbent 
on  a  neutral  power  to  prevent  an  undue  stay  of  belligerent 
war -ships  and  their  prizes  in  it  sports  and  waters.     The  stay  of 
war-ships  may  be  undue  with  regard  to  the  number  permitted 
in  a  neutral  port  at  any  one  time  or  the  length  of  the  period 
during  which  they  are  allowed  to  remain.     Fixed  rules  for 
these   matters   are  comparatively   modern.     Neutral  sover- 
eignty involves  a  right  of  control,  and  of  old  each  neutral 
dealt  with  them  as  occasions  arose,  the  only  limitation  on  its 
freedom  of  action  being  the  elastic  principle  that  it  must  not 
permit  its  ports  and  waters  to  be  made  into  havens  of  rest  or 
depots  of  supply  for  belligerent  fleets.     Sometimes  a  power 
declined  to  allow  more  than  three  war-ships  of  a  foreign  state 
to  enter  any  of  its  ports  at  once  in  time  of  peace  without 
special  permission.     At  the  Second  Hague  Conference  this 
was  taken   as  a  rule   applicable    to  times  of  war,  and  the 
thirteenth  Convention  of  1907  laid  down  that  the  maximum 
number  of  war-ships  belonging  to  a  belligerent  which  may  be 
in  one  of  the  ports  or  roadsteads  of  a  neutral  simultaneously 
should  be  three.1     But  it  reserved  power  to  the  neutral  gov- 
ernment to  make  special  provisions  to  the  contrary.     Con- 
sequently nothing   further  has  been  done   than   to  obtain 
general  recognition  of  a  normal  standard,  which  is  doubtless 
an  advance  on  the  old  laxity,  but  does  not  amount  to  the  en- 
actment of  a  definite  rule.     The  question  of  length  of  stay  is 
far  more  important,  and  must  receive  more  detailed  treatment. 
Not  till  1862  was  it  made  matter  of  formal  regulation  pub- 
lished beforehand,  and  then  by  one  power  only.      In  that 
year  Great  Britain,  being  neutral  in  the  American  Civil  War, 
announced  that  no  belligerent  war-ship  might  remain  in  one 
of  her  ports  longer  than  twenty-four  hours,  unless  special 
permission  was  obtained  for  such  a  purpose  as  coaling   or 
effecting  repairs.    Many  other  powers  have  since  followed  the 

1  See  Article  15. 


640  THE   DUTIES   OF   NEUTRAL  STATES 

British  example ;  but  France  has  never  adopted  it  save  in 
the  case  of  a  cruiser  accompanied  by  a  prize,  and  Germany  has 
desired  to  confine  a  definite  period  to  ports  situated  within  the 
theatre  of  war,  leaving  neutrals  at  liberty  to  fix  their  own 
time  with  regard  to  more  distant  harbors.  In  1907  the 
Second  Hague  Conference  agreed  after  long  discussion  on 
the  twenty-four  hours  rule  for  all  ordinary  cases  "  in  default 
of  special  provisions  to  the  contrary  in  the  laws  of  a  neutral 
power.  " J  It  thus  indicated  that  the  British  practice  might 
with  advantage  become  undoubted  law,  but  provided  a  means 
of  escape  from  it  in  deference  to  the  objections  of  a  few 
powers.  Even  so  Germany  was  not  satisfied,  and  entered  a 
reservation  against  the  article,  and  also  against  the  next, 
which  provides  that  when  a  belligerent  warship  is  in  a  neu- 
tral port  at  the  outbreak  of  war,  the  neutral  government 
must  insist  on  her  departure  within  twenty-four  hours  or 
such  other  time  as  it  has  prescribed  by  law.2  Whatever  may 
be  the  time  allowed,  the  ship  may  not  exceed  it  unless  per- 
mitted to  stay  longer  "  on  account  of  damage  or  stress  of 
weather."  If  this  happens,  "it  must  depart  as  soon  as  the 
cause  of  the  delay  is  at  an  end,"  or  in  default  suffer  intern- 
ment.3 A  further  exception  is  allowed  in  the  case  of  coaling 
"if,  in  accordance  with  the  law  of  the  neutral  power,  the 
ships  are  only  supplied  with  coal  twenty-four  hours  after 
their  arrival."  In  such  circumstances  another  twenty -four 
hours  is  given.4  The  Conference  also  prescribed  the  course 
to  be  followed  when  ships  of  both  belligerents  were  pres- 
ent at  the  same  time  in  the  same  neutral  port  or  roadstead. 
If  both  were  war-ships,  it  followed  the  old  rule  that  has  come 
down  to  us  from  the  sixteenth  century,  and  prescribed  that 
twenty-four  hours  must  elapse  between  their  respective 
departures.  It  added  that  "  the  order  of  departure  is  deter- 
mined by  the  order  of  arrival,  unless  the  ship  that  arrived 
first  is  so  circumstanced  that  an  extension  of  its  stay  is  per- 

1  Thirteenth  Convention  of  1907,  Article  12.         2  See  Ibid.,  Article  13. 
8  See  Ibid.,  Articles  14,  24.  «  See  Ibid.,  Article  19. 


TOWARDS  BELLIGERENT  STATES  641 

missible."  If  one  of  the  ships  is  a  man-of-war  and  the  other 
a  merchantman,  the  former  must  remain  in  the  port  for  twenty- 
four  hours  after  the  departure  of  the  latter.1  With  regard 
to  the  admission  of  prizes,  neutrals  practised  a  scandalous 
laxity  not  more  than  a  century  ago.  Then  followed  a  period 
of  varying  restraints  imposed  by  each  neutral  as  it  thought 
fit.  In  1862  Great  Britain  excluded  prizes  altogether,  and 
since  then  she  has  followed  the  same  rule  when  neutral. 
But  many  other  maritime  countries  have  not  deemed  it  ex- 
pedient to  go  so  far ;  and  at  the  Hague  Conference  of  1907  great 
differences  of  opinion  were  made  manifest.  The  powers 
could  not  agree  to  surrender  their  liberty  of  action  by  impos- 
ing on  themselves  the  British  rule.  The  utmost  they  were 
able  to  do  was  to  lay  down  that  the  only  reasons  which  jus- 
tified a  belligerent  in  bringing  a  prize  into  a  neutral  port  were 
"unseaworthiness,  stress  of  weather,  a  want  of  fuel  or  pro- 
visions." To  these  was  afterwards  added  the  safe  custody  of 
the  prize  therein  while  it  was  awaiting  the  decision  of  a 
prize  court  sitting  in  the  captor's  country,  and  proceeding  to 
adjudication  on  the  papers  and  not  on  the  ship  herself.2  It 
is  much  to  be  regretted  that  any  sanction  was  given  to  so  ir- 
regular a  course.  Great  Britain  and  Japan  entered  reserva- 
tions against  the  article  that  allowed  it.  The  only  serious 
argument  that  can  be  urged  in  favor  of  it  is  that  it  tends  to 
remove  from  belligerents  the  temptation  to  sink  their  prizes 
at  sea.  Probably  political  reasons  had  more  influence  on 
the  decision  than  considerations  drawn  from  the  fundamen- 
tal principles  of  neutrality.  States  which  possessed  few  har- 
bors in  distant  parts  of  the  world  were  unwilling  to  give  up  the 
right  of  sending  their  prizes  into  the  ports  of  any  neutral  they 
could  persuade  to  receive  them.  If  belligerent  prizes  are 
brought  in  for  other  reasons  than  those  just  given,  the  pro- 
ceeding is  irregular,  and  it  is  the  duty  of  the  neutral  govern- 
ment to  release  them  and  intern  the  prize  crews.3 

1  Thirteenth  Convention  of  1907,  Article  16.      2  See  Ibid.,  Articles  21,  2a 
8  See  Ibid.,  Articles  21,  22. 


642  THE  DUTIES   OF  NEUTRAL  STATES 

In  addition  to  the  duties  previously  mentioned,  a  neutral 
state  is  bound  to  prevent  an  increase  of  the  fighting  force  of 
belligerent  war  vessels  in  its  ports  and  roadsteads.  This  whole- 
some rule  had  been  generally  recognized  for  a  long  time  when 
the  Second  Hague  Conference  embodied  it  in  a  law-making 
document.  The  question  of  repairs  is  bound  up  with  it,  and 
the  Convention  of  1907  on  the  Rights  and  Duties  of  Neutral 
Powers  in  Maritime  War  laid  down  that  "  in  neutral  ports 
and  roadsteads  belligerent  warships  may  only  carry  out  such 
repairs  as  are  absolutely  necessary  to  render  them  seaworthy, 
and  may  not  add  in  any  manner  whatever  to  their  fighting 
force." 1  This  is  the  old  distinction,  sadly  illogical,  but  never- 
theless useful  for  practical  purposes.  What  fits  a  vessel  to 
keep  the  seas  also  fits  it  to  manoeuvre  in  an  engagement,  and 
overtake  or  escape  an  enemy.  But  nevertheless  it  is  pos- 
sible for  experts  to  distinguish  between  repairs  mainly  con- 
cerned with  navigation  and  repairs  mainly  concerned  with 
fighting  power;  and  as  the  Conference  made  the  local  authori- 
ties of  the  neutral  state  judges  of  what  repairs  are  necessary, 
and  provided  that  they  must  be  carried  out  as  quickly  as 
possible,  the  danger  of  abuse  is  reduced  to  a  minimum.  If 
a  belligerent  ship  comes  into  a  neutral  port  in  such  a  condi- 
tion that  a  long  time  would  be  required  to  make  her  sea- 
worthy, she  should  be  disarmed  before  repairs  are  permitted, 
and  detained  in  safe  custody  till  the  end  of  the  war,  when  the 
work  on  her  is  finished.  This  was  the  course  pursued  in 
1904,  during  the  Russo-Japanese  War,  with  regard  to  the 
Russian  cruiser  Lena,  which  put  into  the  American  port  of 
San  Francisco  in  a  badly  damaged  condition  ;  and  in  her  case 
proceedings  were  simplified  by  a  written  request  for  intern- 
ment from  her  commanding  officer.2 

We  must  now  deal  with  the  neutral's  duty  to  prevent  bel- 
ligerent vessels  from  taking  on  board  in  its  ports  and  roadsteads 

1  See  Article  7. 

2  Takahashi,  International  Law  applied  to   the  Russo-Japanese   War, 
pp.  456-457. 


TOWARDS  BELLIGERENT   STATES  643 

with  undue  frequency  and  in  undue  amount  such  supplies  as 
International  Law  allows.  For  all  practical  purposes  these 
resolve  themselves  into  provisions  and  fuel,  for,  as  we  have 
seen,  all  war  material  is  strictly  forbidden.  Few  questions 
have  arisen  about  provisions.  Both  the  British  and  French 
neutrality  regulations  of  1898  and  1904  allowed  belligerent 
vessels  to  obtain  supplies  of  what  was  necessary  "for  the 
subsistence  of  the  crews."  The  Hague  Conference  of  1907 
went  further  and  limited  the  amount  that  might  be  taken 
on  any  occasion  to  what  was  sufficient  "  to  bring  their  sup- 
plies up  to  the  peace  standard."  J  The  local  neutral  authori- 
ties must  be  the  judges  of  what  this  test  allows.  It  would 
in  any  case  be  a  considerable  quantity.  Moreover,  no  limit 
was  placed  on  the  frequency  with  which  replenishment  might 
be  permitted.  On  the  other  hand  the  neutral  retains  a  right 
to  refuse.  With  regard  to  fuel,  the  first  thing  to  note  is 
that  the  Convention  on  state  neutrality  in  warfare  at  sea 
speaks  as  if  it  were  coal  and  nothing  else.  But  many  navies 
are  now  using  oil  as  well,  and  there  can  be  no  doubt  that  the 
provisions  of  the  Convention  will  apply  to  it.  Questions  con- 
nected with  fuel  did  not  arise  till  steam  superseded  sails  as 
the  ordinary  means  of  propulsion  in  the  middle  of  the  nine- 
teenth century.  The  British  neutrality  regulations  of  1862 
declared  that  at  least  three  months  must  elapse  between  any 
two  supplies  of  coal  to  the  same  belligerent  vessel  in  any 
British  port,  whether  the  same  as  on  the  previous  occasion 
or  a  different  one.  Many  powers  adopted  this  rule,  but 
France  and  several  others  declined  to  limit  their  action  by 
it  or  any  other  hard  and  fast  line,  while  they  admitted  a 
duty  to  grant  nothing  more  than  what  was  necessary  for  the 
proper  navigation  of  the  vessel.  At  the  second  Hague  Con- 
ference the  powers  were  able  to  agree  on  the  British  rule,2 
with  the  exception  of  Germany,  who  reserved  the  article 
which  embodied  it.  This  represented  a  general  advance  ; 

1  Thirteenth  Convention  of  1907,  Article  19. 

2  Ibid.,  Article  20. 


644  THE   DUTIES   OF  NEUTRAL  STATES 

but  the  rules  adopted  for  the  regulation  of  the  amount  of 
fuel  thatw  may  be  taken  in  at  any  one  time  by  a  belligerent 
war-ship  in  a  neutral  port  are  distinctly  retrogressive,  as 
compared  with  what  was  best  in  previous  practice.  Great 
Britain  had  in  1862  laid  down  for  the  first  time  that  the 
maximum  amount  of  coal  she  would  allow  on  any  single  oc- 
casion to  a  belligerent  war-ship  was  enough  to  enable  her  to 
reach  the  nearest  port  of  her  own  country,  and  in  1904  at  the 
beginning  of  the  Russo-Japanese  War  she  added  as  an  alter- 
native "  some  nearer  named  neutral  destination."  On  the 
same  occasion  Egypt,  doubtless  at  British  instigation,  went 
further  still,  and  required  the  belligerent  commander  to  sign 
a  declaration  setting  forth  the  amount  of  coal  he  had  on 
board,  and  promising  that,  if  supplied  with  more,  he  would 
proceed  direct  to  a  port  named  in  the  declaration  and  previ- 
ously agreed  on  by  him  and  the  Egyptian  authorities.  In 
return  he  was  to  receive  coal  sufficient,  in  conjunction  with 
what  he  had  already,  to  take  him  to  the  port  named.1  It 
was  afterwards  stated  that  if  the  promise  was  broken  and  the 
coal  used  for  cruising  purposes,  no  more  would  be  supplied 
to  that  particular  vessel  in  any  circumstances.2  Further, 
when  it  was  decided  to  send  the  Russian  Baltic  Fleet  on  its 
adventurous  voyage  to  the  Far  East,  the  expectation  that  it 
would  be  permitted  to  coal  at  various  neutral  ports  on  its 
outward  voyage  was  disappointed  as  far  as  Great  Britain 
was  concerned  by  a  refusal  of  supply  of  any  kind  to  a  bel- 
ligerent fleet  or  single  belligerent  war-ships  "proceeding 
either  to  the  seat  of  war,  or  to  a  position  or  positions  along 
the  line  of  route,  with  the  object  of  intercepting  neutral  ves- 
sels on  suspicion  of  carrying  contraband  of  war."3  Holland 
was  the  only  power  to  issue  a  similar  prohibition  ;  but  many 
others  had  adopted  previously  the  rule  of  measuring  the 
amount  of  the  supply  by  what  the  vessel  required  in  order 

1  British  Diplomatic  and  Consular  Reports,  Egypt,  No.  3229. 

2  Lawrence,  War  and  Neutrality  in  the  Far  East,  pp.  134,  135. 
8  British  Parliamentary  Papers,  Russia,  No.  1  (1905),  p.  11. 


TOWARDS   BELLIGERENT   STATES  645 

to  reach  the  nearest  port  of  its  own  country.  At  the  Second 
Hague  Conference  France,  Russia,  and  Germany  contended 
for  the  amount  usually  obtained  in  time  of  peace.  In  the 
end  what  we  may  call  the  British  rule  was  adopted,  with  the 
addition  that  belligerent  war-ships  might  "fill  up  their 
bunkers  built  to  carry  fuel,  in  neutral  countries  which  have 
adopted  this  method  of  determining  the  amount  of  fuel  to  be 
supplied."  1  Thus  there  will  in  future  be  two  rules  instead 
of  several.  Great  Britain  and  Japan  made  reservations 
against  the  article  which  embodied  them,  holding  strongly 
to  the  view  that  the  second  alternative  was  much  too  lax. 
Doubtless  the  only  rule  consistent  with  a  strict  regard  to 
the  fundamental  principle  that  no  aid  must  be  given  to  either 
belligerent  is  a  rule  which  would  recognize  that  coal  is  as 
much  a  munition  of  war  as  cartridges,  though  it  is  also  sus- 
ceptible of  peaceful  uses,  and  would  accordingly  prohibit  any 
supply  of  it  in  neutral  ports.  But  the  world  is  not  ripe  for 
such  a  drastic  measure  yet.  Under  present  conditions  of 
warfare  and  navigation  it  would  practically  forbid  most  of 
the  great  naval  powers  from  carrying  on  hostilities  in  re- 
mote seas,  and  would  give  an  enormous  advantage  to  Great 
Britain,  the  only  one -among  them  which  possesses  coaling 
stations  all  over  the  world.  But  though  the  ideal  is  not  at- 
tainable it  is  possible  to  reach  it  more  nearly  than  the  Hague 
Conference  of  1907  succeeded  in  doing.  The  limitation  of 
supply  to  the  amount  which  will  take  the  recipient  vessel  to 
the  nearest  port  of  its  own  country  has  proved  workable  in 
practice,  and  has  the  merit  of  a  certain  approximation  to 
genuine  neutrality.  The  public  opinion  of  the  civilized 
world  ought  to  insist  on  its  adoption  v/ith  the  addition  of  the 
significant  clause  "or  some  nearer  named  neutral  destina- 
tion." It  might  even  go  further  and  take  notice  of  the  im- 
mediate purpose  of  the  vessel  which  demands  the  supply,  so 
that  the  cruiser  which  is  lying  in  wait  for  an  unsuspecting 
enemy  or  the  fleet  which  is  on  its  way  to  a  battle  should  no 
1  Thirteenth  Convention  of  1907,  Article  19. 


646  THE   DUTIES  OF   NEUTRAL  STATES 

longer  be  put  on  the  same  footing  in  this  respect  with  the 
ship  which  requires  coal  for  the  ordinary  purposes  of  navi- 
gation. 

Finally  we  may  say  that  neutral  powers  are  under  an 
obligation  to  prevent  the  use  of  any  part  of  their  territory  as 
an  information  station  by  a  belligerent.  This  was  recognized 
by  the  Second  Hague  Conference  when  in  its  Convention  on 
State  Neutrality  in  Land  Warfare  it  forbade  belligerents  to 
erect  on  neutral  territory  "  a  wireless  telegraphy  station  or 
any  apparatus  intended  to  serve  as  a  means  of  communica- 
tion with  the  belligerent  forces  on  land  or  sea,  or  to  make 
use  of  any  installation  of  this  kind  established  by  them 
before  the  war  on  the  territory  of  a  neutral  power,  for 
purely  military  purposes  and  not  previously  opened  for  the 
service  of  public  messages."1  The  Convention  on  State 
Neutrality  in  Sea  Warfare  applied  to  neutral  ports  and  waters 
the  prohibition  against  the  erection  by  a  belligerent  of 
wireless  telegraphy  stations  or  similar  means  of  communicat- 
ing with  its  land  or  sea  forces.2  Both  Conventions  declare 
that  a  neutral  government  onght  not  to  allow  any  of  the 
acts  referred  to  above ; 3  but  the  first  left  it  free  "  to  forbid 
or  restrict  the  employment  on  behalf  of  belligerents  of  tele- 
graph or  telephone  cables  or  of  wireless  telegraphy  apparatus, 
whether  belonging  to  it  or  to  companies  or  to  private  in- 
dividuals." If  it  took  prohibitive  measures  or  laid  down 
restrictions,  it  was  bound  to  apply  them  impartially  to  both 
belligerents,  and  to  see  that  companies  and  private  owners 
did  the  same.4  The  effect  of  all  these  provisions  when  taken 
together  is  to  draw  a  broad  line  of  distinction  between  means 
of  sending  information  owned  and  controlled  by  the  belliger- 
ent himself  on  neutral  territory  or  in  neutral  territorial  waters, 
and  similar  means  owned  and  controlled  by  the  neutral  state 
or  by  private  persons  and  companies  within  its  jurisdiction. 
Neutral  governments  are  bound  to  prevent  the  erection  of 

1  See  Article  3.  2  gee  Article  5. 

8  See  Articles  6  and  25  respectively.  4  See  Articles  8,  9. 


TOWARDS   BELLIGERENT   STATES  647 

the  former  during  the  war,  and  the  use  of  anything  of  the 
kind  established  before  the  war  and  not  previously  opened  to 
the  public  for  the  transmission  of  messages.  The  latter  they 
are  free  to  deal  with  as  they  please  on  the  sole  condition  that 
they  act  impartially  as  between  the  belligerents.  Two  recent 
cases  will  illustrate  the  difference.  In  1904,  during  the  siege 
of  Port  Arthur,  the  Russians  erected  a  wireless  telegraphy 
station  in  the  neutral  Chinese  port  of  Chefoo,  and  thus  estab- 
lished communication  with  the  beleaguered  fortress.1  Such 
an  act  is  now  expressly  forbidden,  and  the  duty  of  prevent- 
ing it  laid  on  the  neutral  government.  In  1898  "  the 
cables  from  neutral  points  during  the  Spanish  American 
War  .  .  .  did  much  in  furnishing  information  which  the 
scouting  vessels  were  unable  to  obtain."  We  are  told  this  on 
American  authority,2  and  it  shows  conclusively  that  neutral 
powers  would  do  well  to  exercise  the  discretion  given  them 
by  the  Second  Hague  Conference  in  favor  of  such  regulation 
and  restriction  as  proves  to  be  possible.  The  prevention  of 
open  and  unrestricted  use  of  telegraphic  or  wireless  commu- 
nication would  surely  be  feasible,  though  it  would  probably 
prove  a  hopeless  task  to  stop  the  sending  of  warlike  infor- 
mation in  the  guise  of  apparently  harmless  messages. 
France  in  her  neutrality  regulations  of  1904  forbade  to 
belligerent  vessels  in  French  ports  "  all  enquiry  as  to  the 
force,  position,  or  resources  of  their  enemies  "  ;  and  it  would 
be  interesting  to  know  how  far  these  words  were  held  to 
apply  to  the  sending  of  telegraphic  and  radiographic  mes- 
sages. Portugal  in  1898  discontinued  that  portion  of  her 
service  which  related  "to  the  appearance,  entrance,  and 
departure  of  war  vessels  of  all  nationalities."3  Without 
going  to  such  a  length  as  this,  neutral  states  might  manage 
at  least  to  check  the  use  of  their  means  of  communication 
for  warlike  purposes. 


1  Lawrence,  War  and  Neutrality  in  the  Far  East,  2d.  ed.,  pp.  218-220. 
8  U.  S.  Naval  War  College,  International  Law  Situations,  1904,  p.  99. 
8  Ibid.,  pp,  101-102. 


648  THE  DUTIES   OF   NEUTRAL  STATES 

§237 
We  must  now  direct  our  attention  towards 

Duties  of  acquiescence. 

Neutral  states  are  bound  to  endure  quietly  a  good  many 
proceedings  on  the  part  of  belligerents  which  could  not  take 
(3)  Duties  of  place  in  time  of  peace,  but  which  nevertheless 
acquiescence.  are  perfectly  lawful  in  time  of  war,  however 
burdensome  and  annoying  they  may  be  to  neutral  subjects 
and  their  governments.  They  must,  for  instance,  acquiesce 
in  incidental  damages  sustained  during  legitimate  warlike 
operations.  Neutral  property  might  be  destroyed  by  artil- 
lery in  the  course  of  a  battle  or  a  siege,  or  a  neutral  traveller 
might  be  injured  during  an  attack  on  a  train  containing  sol- 
diers, but  neither  the  property  owner  nor  the  traveller  would 
have  a  legal  claim  to  indemnity,  though  compensation  might 
perhaps  be  given  by  a  belligerent  particularly  anxious  to  stand 
well  with  the  country  to  which  they  belonged.  But  neutral 
governments  are  called  on  to  fulfil  their  duty  of  acquiescence 
chiefly  in  connection  with  belligerent  rights  of  search  and 
capture  at  sea.  This  is  always  troublesome  to  neutral  mer- 
chants, and  may  be  very  burdensome.  To  be  deprived  of 
opportunities  of  profit  and  subjected  instead  to  severe  loss 
rouses  in  those  who  suffer  strong  and  loudly  expressed  re- 
sentment. Much  pressure  is  thus  brought  to  bear  on  the 
rulers  of  neutral  states.  But  it  is  their  duty  to  resist  it,  if 
the  undoubted  belligerent  right  to  stop  private  vessels  at  sea 
under  the  neutral  flag  and  examine  into  the  nature  and  des- 
tination of  their  cargoes  is  exercised  with  due  consideration. 
And  if,  when  exercised,  it  leads  to  the  detention  and  even- 
tual condemnation  of  ship  or  goods  or  both,  acquiescence  still 
remains  a  duty,  provided  that  the  rules  of  International  Law 
have  been  observed  throughout.  While  breach  of  blockade, 
carriage  of  contraband,  and  performance  of  unneutral  service 
remain  offences  against  belligerents,  and  while  the  capture  of 
private  enemy  property  is  still  allowed  in  maritime  warfare, 


TOWARDS   BELLIGEKENT   STATES  649 

no  exception  can  be  taken  to  seizures  made  accordingly.  But 
if  the  law  is  exceeded  in  any  particular,  still  more  if  it  is 
flagrantly  broken,  a  watchful  neutral  government  will  at  once 
intervene  and  demand  reparation  for  its  injured  subjects. 
This  will  generally  take  the  form  of  pecuniary  compensation, 
for  a  sentence  of  a  properly  constituted  prize  court  settles 
proprietary  rights  in  the  ship  or  goods  before  it.  Should  re- 
dress be  denied,  the  neutral  power  must  decide  whether  the 
question  at  issue  is  grave  enough  to  justify  war.  Many  of 
the  most  dangerous  disputes  that  have  arisen  between  neu- 
trals and  belligerents  with  regard  to  captures  at  sea  have 
been  caused,  not  by  deliberate  violations  of  admitted  rules, 
but  by  differences  of  opinion  as  to  the  rules  themselves.  This 
is  especially  true  of  cases  connected  with  contraband  and 
blockade.  Bnt  the  law  on  these  two  important  matters 
may  be  deemed  to  have  been  settled  by  the  Declaration  of 
London  of  1909,  and  the  two  Hague  Conferences  have  cleared 

'  o 

up  many  other  questions.  Further,  we  are  on  the  eve  of 
establishing  an  International  Prize  Tribunal,  whose  deci- 
sions as  a  Court  of  Appeal  will  determine  with  authority  the 
law  of  the  future  on  numerous  points.  By  these  means  seri- 
ous controversies  as  to  the  rules  applicable  to  particular  cases 
will  be  diminished  in  number  and  reduced  in  heat.  Neutrals 
will  know  the  exact  limits  of  their  duty  of  acquiescence,  and 
honorable  belligerents  will  not  attempt  to  stretch  it  further 
than  their  rights  allow. 

§  238 
We  must  now  go  on  to  discuss 

Duties  of  Restoration. 

These   arise   only  when  a  belligerent  breaks   the   law  and 
flouts  neutral  sovereignty  to  the  detriment  of  its  foe.     If 
for  instance  it  captures  a  prize  within  neutral  (4)  Duties  of 
waters   a   double   wrong  is   done.       Both  the  restora«01 
power  whose  authority  is  set  at  naught  and  the  power  which 


650  THE   DUTIES   OF   NEUTRAL  STATES 

loses  its  vessel  suffer  through  its  misdeed.  The  injured  bel- 
ligerent must  apply  for  redress  to  the  neutral  within  whose 
jurisdiction  the  unlawful  act  was  committed,  and  the  neutral 
has  a  claim  against  the  injuring  belligerent  for  breaking  the 
peace  in  contempt  of  its  sovereign  rights.  The  proper  repara- 
tion, or  at  least  an  important  part  of  it,  is  the  return  of  the  prize 
to  the  spot  where  it  was  unlawfully  taken.  And  when  it  has 
been  given  up  to  the  power  which  was  injured  by  its  seizure, 
it  should  be  restored  by  that  power  to  those  from  whose  cus- 
tody it  was  originally  snatched.  Indeed,  the  duty  of  restora- 
tion goes  further.  The  neutral  ought  to  make  every  effort 
to  obtain  the  return  of  the  vessel.  It  must  resort  to  diplo- 
macy, but  it  need  not  rely  on  that  alone ;  if  the  ship  is 
still  within  its  jurisdiction,  force  may  be  used  to  take  it 
from  those  who  hold  unlawful  possession.  The  Hague 
Convention  relative  to  the  Establishment  of  an  International 
Prize  Court  adds  to  diplomacy  and  force  yet  another  means. 
It  provides  for  an  appeal  to  that  court  by  the  neutral  power 
when  the  capture  is  alleged  to  have  taken  place  in  its  terri- 
torial waters.1  These  proceedings  are  to  be  taken  by  the 
neutral  in  order  to  put  it  into  a  position  to  perform  towards 
the  other  belligerent  its  duty  of  release  and  restoration. 
They  are  alluded  to  in  the  thirteenth  Hague  Convention  of 
1907. 2  Diplomatic  request  is  regarded  as  the  appropriate 
method,  if  the  vessel  is  not  within  the  jurisdiction  of  the 
neutral  power ;  and  an  obligation  to  liberate  the  prize  with 
its  officers  and  crew  on  receipt  of  such  a  demand  is  laid  on 
the  belligerent  who  seized  it.  When  there  has  been  no 
departure  from  the  jurisdiction,  "  all  the  means  "  at  the  dis- 
posal of  the  neutral  are  to  be  resorted  to  in  order  that  the 
release  of  the  prize  may  be  effected.  Moreover,  the  prize  crew 
is  to  be  interned.  These  provisions  clearly  contemplate  the 
possibility  of  a  resort  to  force.  But  the  Convention  does  not 
lay  on  the  neutral  state  an  obligation  to  demand  surrender, 
though  it  asserts  the  duty  of  the  belligerent  to  give  up  its 
1  See  Article  4.  «  See  Article  3. 


TOWARDS   BELLIGERENT  STATES  651 

prize,  if  the  demand  should  be  made.  It  may,  however,  be 
maintained  on  good  grounds  that  the  neutral  obligation  in 
question  is  created  by  ordinary  International  Law.  When 
the  prize  is  set  free  its  officers  and  crew  are  to  be  liberated 
along  with  it. 

A  second  case  for  the  exercise  of  the  duty  of  restoration 
arises  when  a  prize  is  brought  into  a  neutral  port  in  an 
irregular  manner,  that  is  to  say  for  other  causes  than  unsea- 
worthiness, stress  of  weather,  want  of  fuel  or  provisions,  and 
sequestration  pending  the  decisions  of  a  prize  court.  The 
neutral  power  must  not  sit  down  quietly  under  the  disrespect 
shown  by  the  irregularity.  It  is  bidden  "  to  use  the  means 
at  its  disposal "  to  release  the  vessel  "  with  its  officers  and 
crew  and  to  intern  the  prize  crew." 1  The  release  is  but  a  pre- 
liminary to  the  handing  over  of  the  ship  to  the  authority  of 
the  state  from  which  it  was  captured ;  and  the  duty  of  effect- 
ing it  is,  therefore,  properly  described  as  a  duty  of  restora- 
tion. 

§  239 

The  last  class  set  of  duties  to  be  discussed  in  connection 
with  state  neutrality  are 

Duties  of  Reparation. 

When  a  belligerent  suffers  through  the  failure  of  a  neutral 
from  ill-will  or  remissness  to  fulfill  the  obligations  laid  on  it  by 
(5)  Duties  of  International  Law,  a  valid  claim  for  satisfaction 

reparation.  ^    redresg    ariseSt       ft  is   difficult,    aS    W6    have 

seen,  to  define  the  exact  measure  of  care  and  diligence  the 
belligerent  may  rightly  require  from  a  neutral  government,2 
but  no  one  can  doubt  that  indifference  and  carelessness 
may  cause  such  detriment  to  the  power  which  suffers  from 
them  as  to  give  it  a  right  to  reparation.  If  proper  pre- 
cautions are  taken  and  fail,  no  responsibility  arises.  Japan 

i  Convention  of  1907  concerning  Neutral  Eights  and  Duties  in  Maritime 
War,  Article  22.  '  See  §  235. 


652  THE   DUTIES   OF   NEUTRAL  STATES 

did  not  make  any  demands  on  the  British  government  when 
in  October,  1904,  the  torpedo  boat  Caroline  escaped  from  the 
Thames,  where  it  had  been  built,  and  reached  Libau,  where 
it  was  handed  over  to  the  Russian  authorities.  Its  builders 
had  been  cleverly  hoodwinked,  and  when  suspicion  arose  and 
the  British  Admiralty  intervened,  the  vessel  got  away  just  in 
time  to  avoid  seizure.  But  if  nothing  is  done  when  the  case 
is  clear,  or  if  action  is  unreasonably  delayed,  the  neutral  is 
bound  to  give  reparation,  though  the  violation  of  its  own 
sovereignty  has  made  it  a  fellow-sufferer  in  respect  of  the 
injury  done.  This  was  made  clear  by  the  famous  Geneva 
Arbitration  of  1872  on  the  case  of  the  Alabama  and  her  sister 
cruisers  during  the  American  Civil  War.  Great  Britain  was 
cast  in  damages  three  million  pounds  sterling  on  account  of 
her  negligence,  in  spite  of  being  able  to  show  that  there  was 
great  difference  of  opinion  among  jurists  as  to  the  obligatory 
nature  of  much  that  was  demanded  of  her.  For  the  sake  of 
peace  she  had  consented  to  be  judged  by  the  three  rules  laid 
down  in  the  Treaty  of  Washington  of  1871 ;  l  and  not  till 
1907  were  they  generally  accepted  as  undoubted  International 
Law  by  their  embodiment  in  the  Hague  Convention  concern- 
ing Neutral  Rights  and  Duties  in  Maritime  War.2  In  very 
extreme  cases,  when  the  feebleness  and  folly  of  a  neutral 
government  makes  its  neutrality  little  better  than  a  farce,  a 
belligerent  may  be  justified,  if  all  other  means  fail,  in  acting 
as  if  it  did  not  exist. 

§240 

We  will  conclude  our  attempt  to  set  forth  the  duties  of 

neutral  states  towards  belligerent  states  by  indicating  very 

briefly  what  are  the  powers  possessed  by  neutral 

The  powers  pos-     governments  for  the  protection  of  their  neutral- 

sessed  by  neutral 

states  for  the  pro-    ity.     They  have  first  the  remedy  by  diplomatic 

tection  of  their  ,    .  . 

neutrality.  complaint.     As  a  rule  their  remonstrances  will 

obtain  a  respectful  hearing ;  for  it  is  to  the  in- 
terest of  every  belligerent  to  keep  on  good  terms  with  the 
1  See  §  235.  a  See  Articles  6,  8,  25, 


TOWARDS   BELLIGERENT   STATES  653 

powers  that  take  no  part  in  the  war.  If  the  case  is  flagrant, 
and  the  wrong  notorious  and  undoubted,  adequate  reparation 
will  generally  be  accorded  in  answer  to  reasonable  demands. 
Another  remedy,  which  by  no  means  excludes  the  former 
though  quite  independent  of  it,  is  to  be  found  in  administra- 
tive action,  treading  close  on  the  heels  of  the  wrong,  and 
either  preventing  its  completion  or  inflicting  exemplary 
punishment  on  the  wrong-doer.  Thus,  if  a  belligerent  war- 
vessel  tries  to  effect  a  capture  in  a  neutral  port,  the  authorities 
may  use  whatever  force  is  at  their  disposal  for  the  purpose 
of  frustrating  the  attempt.  And  if  the  aggressor  is  crippled 
or  sunk  in  the  course  of  the  struggle,  her  commander  has  only 
himself  to  thank  for  the  result  of  his  attempt  at  outrage. 
It  is  constantly  asserted  that  the  neutral  may  in  this  connec- 
tion pursue  an  offending  vessel  on  to  the  high  seas  and  there 
deal  with  it  as  justice  may  demand.  But  no  clear  authority 
for  this  statement  can  be  found  in  general  usage  or  in  judicial 
decisions.  Moreover,  it  seems  inconsistent  with  admitted 
principle.  A  state  has  a  right  to  police  its  own  waters.  But 
has  it  a  right  to  enforce  outside  them  the  regulations  deemed 
necessary  for  protecting  the  integrity  of  its  territory?  How- 
ever, the  view  we  hesitate  to  accept  has  in  its  favor  the 
great  authority  of  the  Institute  of  International  Law,  which 
declared  at  its  Paris  meeting  in  1894  that,  in  case  of  an 
offence  committed  within  the  jurisdiction  of  the  territorial 
power,  a  pursuit  commenced  in  its  territorial  waters  might 
be  continued  on  the  high  seas,  with  the  condition  that  the 
right  to  follow  and  capture  ceased  if  the  flying  vessel  gained 
a  port  of  its  own  country  or  of  a  third  state.1 

We  come  lastly  to  the  remedy  by  judicial  process.  The 
neutral  state  has  the  right  of  exercising  jurisdiction  through 
its  Prize  Courts  over  captures  made  by  belligerents  within 
its  dominions,  whether  the  captured  property  remains  from 
the  first  in  the  neutral  waters  where  it  has  been  illegally 
taken,  or  is  brought  back  to  them  some  time  after  the  cap- 
1  Annuaire  de  VInstitut  de  Droit  International,  1894-1895,  p.  330. 


654  THE   DUTIES   OF  NEUTRAL   STATES 

ture.  The  restoration  is  generally  made  by  administrative 
act,  but  it  is  sometimes  more  convenient  that  the  case  should 
go  before  the  neutral  courts  and  be  decided  by  them.  Their 
jurisdiction  extends  also  to  cases  where  the  capturing  vessel 
has  received  either  its  original  equipment  for  war  or  a  sub- 
sequent augmentation  of  warlike  force  within  the  neutral's 
territorial  waters,  and  has  afterwards  taken  a  prize  and 
brought  it  into  one  of  the  ports  of  the  injured  power.  This 
is  clearly  set  forth  in  a  large  number  of  judicial  decisions, 
the  most  important  of  which  is  that  given  by  Judge  Story  in 
the  case  of  Santissima  Trinidad,1  when  he  laid  down,  in 
addition,  among  other  propositions,  that  the  neutral's  juris- 
diction was  limited  to  captures  made  during  the  cruise 
wherein  the  illegal  outfit  or  augmentation  of  force  took 
place.2 

1  Wheaton,  Reports  of  the  U.  S.  Supreme  Court,  vol.  VII,  p.  283. 

2  For  a  brilliant  and  lucid  presentment  of  all  the  questions  discussed  by 
the  Second  Hague  Conference  in  connection  with  the  Convention  concern- 
ing the  Rights  and  Duties  of  Neutral  States  in  Maritime  Warfare,  see  the 
Report  of  Professor  Louis  Renault  in  Deuxieme  Conference  Internationale 
de  la  Paix,  Actes  et  Documents,  vol.  I,  pp.  295-330.     For  illuminating  com- 
ments on  the  Convention,  see   Higgins,   The   Hague   Peace   Conferences, 
pp.  457-483,  and  Scott,  The  Hague  Peace  Conferences,  vol.  I,  pp.  620-348. 
For  the  text  of  the  two  conventions  on  state  neutrality  constantly  cited  in 
this  Chapter,   see   Higgins,    The  Hague  Peace   Conferences,   pp.  281-289, 
445-456  ;  Whittuck,  International  Documents,  pp.  143-150,  208-217  ;  Scott, 
The  Hague  Peace  Conferences,  vol.  II,  pp.  400-414,  506-523  ;  Supplement  to 
the  American  Journal  of  International  Law,  vol.  II,  pp.  117-127,  202-216. 


CHAPTER  IV 

ORDINARY   NEUTRAL  COMMERCE 
§    241 

WE  have  now  to  consider  the  Law  of  Neutrality  in  its 
second  great  division,  which  deals  with  belligerent  states 
and  neutral  individuals.1  In  the  Middle  Aeres 

The  conflict 

the  growth  of  trade  forced  commercial  questions  between  bemger- 
upon  the  attention  of  rulers  long  before  the  idea  fnterestsTiTthe 
arose  that  states  as  corporate  bodies  had  any  matteroftrade- 
duties  towards  one  another  in  the  matter  of  neutrality.  The 
belligerent  dealt  with  neutral  commerce  himself,  and  pun- 
ished violations  of  the  rules  he  laid  down  for  the  furtherance 
of  his  own  interests.  Then,  as  trade  became  more  important 
and  traders  more  influential,  they  began  to  demand  that 
some  respect  should  be  paid  to  them ;  and  after  the  decay 
of  feudalism  and  the  commencement  of  a  new  commercial 
and  industrial  epoch,  states  arose  whose  policy  it  was  to 
extend  the  immunities  of  neutral  merchants  at  the  expense 
of  belligerent  rights.  For  three  centuries  at  least  trading 
interests  have  grown  steadily  stronger  and  stronger ;  and  the 
result  has  been  a  continual  modification  of  the  older  rules, 
and  the  growth  of  a  body  of  law  which  is  a  compromise 
between  the  attempt  of  the  belligerent  state  to  cut  off  its 
enemy's  trade  and  the  attempt  of  the  neutral  individual  to 
trade  unhindered  by  the  war.  Opposing  self-interests  have 
been  the  main  forces  at  work  in  the  development  of  indi- 
vidual neutrality,  just  as  ethical  principles  have  been  the 
chief  elements  in  the  growth  of  state  neutrality.  But  never- 
theless the  rules  which  govern  the  ventures  of  neutral  mer- 

i  See  §  228. 
655 


650  ORDINARY   NEUTRAL   COMMERCE 

chants  and  ship-owners  possessed  a  clearness  and  symmetry 
which  were  lacking  till  lately  when  we  turned  to  the  mutual 
duties  of  neutral  and  belligerent  states.  The  difference  was 
due  to  the  fact  that  the  former  were  administered  by  Prize 
Courts  and  developed  by  trained  jurists,  who  gave  us,  not 
indeed  one  great  international  system,  but  several  national 
systems ;  whereas  the  latter  were  in  the  main  left  to  be  set- 
tled by  the  ex  parte  arguments  of  international  controver- 
sialists and  the  slow  growth  of  opinion  among  civilized 
peoples.  But  now  they  are  developing  in  the  direction  of 
precision  of  statement  and  general  recognition,  owing  to  the 
labors  of  the  Second  Hague  Conference  in  the  negotiation 
of  the  Conventions  we  have  considered  in  the  two  previous 
chapters.  Moreover  the  universality  needed  for  the  rules 
which  deal  with  the  relations  of  belligerent  states  and  neu- 
tral individuals  has  been  supplied  to  a  great  extent  of  late, 
as  we  shall  see  in  the  present  chapter  and  those  which  fol- 
low it. 

Among  the  subjects  which  fall  under  the  head  of  neutrality 
as  it  is  concerned  with  the  rights  and  obligations  of  bellig- 
erent states  and  neutral  individuals,  the  first  place  must 
be  given  to  what  we  have  already  called  Ordinary  Neutral 
Commerce.  By  these  words  we  mean  commerce  uncompli- 
cated by  any  question  as  to  the  kind  of  service  performed 
by  the  ship  concerned,  or  the  warlike  character  of  the  goods 
conveyed,  or  the  special  circumstances  of  their  port  of  desti- 
nation. Under  this  head,  therefore,  we  have  to  deal  simply 
with  the  restrictions  belligerents  have  endeavored  to  place 
upon  harmless  every-day  trade,  on  the  plea  that  they  must 
be  allowed  to  put  all  possible  stress  upon  a  foe,  and  the 
modifications  contended  for  by  neutrals,  on  the  principle 
that  they  must  be  permitted  to  carry  on  their  commerce 
unhindered  by  a  war  in  which  they  are  not  concerned.1 
The  special  character  of  sea-borne  commerce  often  renders 
it  impossible  to  separate  neutral  and  belligerent  interests  in 

1  Dupuis,  La  Guerre  Maritime,  §§  34-39. 


ORDINAKY   NEUTRAL  COMMERCE  657 

it,  and  strike  at  an  enemy  without  injuring  a  friend.  On 
land  few  neutral  goods  are  found  in  belligerent  territory,  and 
these  are  subject  to  the  ordinary  rules  of  warfare.  The 
government  of  the  country  taxes  them  as  it  taxes  the  goods 
of  its  subjects,  and  an  occupying  invader  requisitions  them 
as  it  requisitions  the  goods  of  its  enemies.  But  at  sea, 
where  there  is  no  territorial  jurisdiction  to  simplify  matters, 
enemies'  goods  are  often  found  on  neutral  ships,  and  neutral 
goods  on  enemies'  ships.  It  is  necessary,  therefore,  to  settle 
in  each  case  whether  the  element  of  neutrality  or  the  element 
of  belligerency  shall  prevail.  Two  principles  have  found 
favor  at  various  times  as  rough  attempts  to  provide  a  work- 
able compromise  between  the  demands  of  warring  navies  and 
the  claims  of  neutral  commerce.  The  first  lays  down  that 
the  liability  of  the  goods  to  capture  shall  be  determined 
by  the  character  of  the  owner,  while  the  second  declares  that 
the  character  of  the  vehicle  shall  decide.  These  two  prin- 
ciples, taken  either  separately  or  in  combination,  will  be 
found  to  lie  at  the  bottom  of  all  the  practical  rules  that  have 
ever  been  enforced  since  attempts  to  cut  off  all  neutral  com- 
merce with  an  enemy  ceased,  and  rules  of  any  kind  were 
imposed  on  indiscriminate  robbery. 

§  242 

The  Consolato  del  Mare,  which  was  the  greatest  of  the 
medieval  maritime  codes,1  declared  that  if  the  captured  vessel 
was  neutral  and  the  cargo  enemy,  the  captor  Theh)8toryofthe 
might  compel  the  vessel  to  carry  the  cargo  to  a  mies  of  ordinary 

*  °  maritime  capture. 

place  of  safety,  paying  her  the  freight  she  was 
to  have  received  from  the  owners  of  the  goods.  If,  on  the 
other  hand,  the  vessel  was  enemy  and  the  cargo  neutral,  the 
owners  of  the  cargo  were  at  liberty  to  ransom  the  vessel  from 
the  captor  and  proceed  on  their  voyage ;  and  if  they  refused 
to  do  so,  the  captor  might  send  the  vessel  to  a  port  of  his 

i  See  §  20. 


658  ORDINARY   NEUTRAL   COMMERCE 

own  country  and  make  the  owners  of  the  cargo  pay  the 
freight  they  would  have  paid  to  the  original  belligerent 
owner  of  the  vessel.  But  if  they  were  willing  to  make 
satisfactory  arrangements  about  the  ship  and  the  captor 
refused,  they  could  claim  from  him  compensation  for  damage 
and  he  could  claim  no  freight  from  them.1  These  provisions 
proceeded  on  the  principle  that  the  fate  of  the  goods  de- 
pended upon  the  quality  of  the  owner.  If  he  were  an 
enemy,  they  were  subject  to  capture,  even  though  they 
might  be  found  in  a  neutral  vehicle;  if  he  were  a  neutral, 
they  were  free  from  capture,  even  though  they  might  be 
found  in  an  enemy  vehicle.  The  rules  of  the  Consolato  were 
generally  adopted  in  the  Europe  of  the  Reformation  and  the 
Renaissance,  though  other  usages  sometimes  showed  them- 
selves. For  instance,  belligerents  on  some  occasions  made 
serious  efforts  to  prevent  neutrals  from  trading  at  all  with 
the  enemy,  and  the  doctrine  that  the  neutral  ship  was  tainted 
by  the  enemy  cargo,  the  neutral  cargo  by  the  enemy  ship, 
and  the  neutral  part  of  a  mixed  cargo  by  the  enemy  part 
was  invented  in  France,  and  put  in  practice  in  a  few  wars  of 
the  sixteenth  and  seventeenth  centuries  under  the  name  of 
the  doctrine  of  infection.2  But  on  the  whole  states  followed 
the  plain  and  simple  plan  of  capturing  enemy  goods  and 
letting  neutral  goods  go  free,  regardless  of  the  nationality 
of  the  vessel  in  which  they  were  found.  And  further,  as 
civilization  and  trade  advanced  the  obligation  of  bringing 
captured  vessels  in  for  adjudication  by  competent  Prize 
Courts  was  universally  admitted;  and  it  was  held  that  the 
courts  must  both  condemn  the  enemy  goods  while  they  re- 
leased the  neutral  vehicle  and  paid  freight  to  its  owners,  and 
also  condemn  the  enemy  vehicle  while  they  released  the 
neutral  goods.  This  did  away  with  that  portion  of  the  code 
of  maritime  capture  contained  in  the  Consolato  which  deals 
with  the  ransom  of  a  belligerent  prize  by  the  neutral  owners 

1  Pardessus,  Us  et  Coutumes  de  la  Mer,  vol.  II,  p.  304. 
8  Dupuis,  La  Guerre  Maritime,  §§  41-43, 


ORDINARY   NEUTRAL   COMMERCE  659 

of  her  innocent  cargo;  but  in  other  respects  the  system 
remained  intact  and  became  part  of  the  common  law  of 
nations. 

After  a  time,  however,  an  alternative  arose  based  upon  a 
principle  deemed  to  be  more  favorable  to  neutral  commerce. 
It  was  suggested  that  the  liability  of  goods  to  capture  should 
be  determined  by  the  character  of  the  vessel  which  carried 
them.  If  she  were  neutral,  they  were  to  go  free,  even  though 
they  belonged  to  an  enemy;  but  if  she  were  enemy,  they 
were  to  be  condemned,  even  though  they  belonged  to  a  neu- 
tral. The  new  doctrine  was  set  forth  in  the  twin  maxims, 
Free  skips,  free  goods,  and  Enemy  ships,  enemy  goods.  The 
Dutch,  its  first  advocates,  adopted  it  on  grounds  of  self-interest 
and  commercial  utility,  recognizing  that  it  was  a  new  prin- 
ciple, which  must  be  applied  by  special  agreement  if  their 
commerce  was  to  gain  the  benefit  of  it.  The  greater  part  of 
the  carrying  trade  of  Europe  was  in  their  hands  during  the 
seventeenth  century,  and  the  object  they  had  in  view  was  to 
obtain  freedom  from  molestation  for  belligerent  commerce 
intrusted  to  their  care.  But,  in  order  to  gain  what  they  de- 
sired, they  were  obliged  to  purchase  safety  for  enemy  mer- 
chandise beneath  a  neutral  flag  by  conceding  to  belligerents 
a  right  to  capture  neutral  goods  beneath  an  enemy  flag. 
Thus  we  find  a  long  series  of  treaties  stipulating  for  the  adop- 
tion of  the  principle  that  the  character  of  the  vehicle  settles 
the  fate  of  the  goods,  unless  indeed  contraband  of  war  be 
found  on  board  a  friendly  vessel,  in  which  case  it  is  not  pro- 
tected by  the  neutral  flag.  The  first  was  made  between  the 
United  Netherlands  and  Spain  in  1650,1  and  it  was  followed 
at  irregular  intervals  by  many  others.2  The  United  States 
from  the  commencement  of  their  separate  national  existence 
showed  their  willingness  to  embody  the  newer  doctrine  in 
their  formal  international  agreements.  It  occurs  in  the 
treaties  of  1778  and  1800  with  France,  in  the  treaty  of  1782 

i.Dumont,  Corps  Diplomatique,  vol.  VI,  part  I,  p.  571. 
2  Manning,  Law  of  Nations,  (Amos's  ed.),  bk.  V,  ch.  vi. 


660  ORDINARY  NEUTRAL   COMMERCE 

with  the  Dutch,  and  in  the  treaty  of  1783  with  Sweden.1 
The  treaties  of  1785  with  Prussia  and  1795  with  Spain  go 
still  further  and  stipulate  for  the  rule  free  ships,  free  goods, 
without  the  corresponding  rule  Enemy  ships,  enemy  goods; 
but  in  1799,  when  a  new  treaty  was  negotiated  with  the 
former  power,  the  previous  agreement  was  replaced  by  a 
promise  to  observe  "  the  principles  and  rules  of  the  law  of 
nations  generally  acknowledged,"  and  in  1819  the  obligation 
entered  into  with  Spain  was  confined  to  cases  where  reci- 
procity was  observed  by  neutral  powers  the  goods  of  whose 
subjects  were  spared.2  A  complete  return  to  the  rule  of  the 
Consolato  is  found  in  the  treaty  with  Great  Britain  of  1794, 
which  expressly  stated  that  the  property  of  an  enemy  found 
on  board  a  neutral  vessel  should  be  regarded  as  good  prize  of 
war.8 

It  is  evident  from  these  examples  that  the  diplomatic  policy 
of  the  United  States  has  not  been  consistent.  On  the  whole 
it  has  inclined  strongly  towards  the  freedom  of  enemy  goods 
under  the  neutral  flag  ;  but  in  recent  times  the  treaties  have 
contained  a  proviso  that  the  contracting  parties  will  give  the 
benfit  of  this  rule  only  to  those  neutrals  who  govern  their 
own  practice  by  it  when  they  are  at  war.4  Yet  the  older 
American  jurists  always  laid  down  that  in  the  absence  of 
treaty  stipulations  the  rule  of  the  Consolato  applies.  Kent 
says  of  the  agreements  that  free  ships  should  make  free  goods, 
that  such  provisions  "  are  to  be  considered  as  resting  on  con- 
ventional law  merely  and  as  exceptions  to  the  operation  of 
the  general  rule";5  and  Jefferson  wrote  in  1793,  "I  believe 
it  cannot  be  doubted  that  by  the  general  law  of  nations  the 
goods  of  a  friend  found  in  the  vessel  of  an  enemy  are  free, 

1  Treaties  of  the  United  States,  pp.  301,  303,  326,  752,  763,  1044,  1046. 

2  Ibid.,  pp.  902,  911,  1010,  1011,  1020,  1021. 
8  Ibid.,  p.  389. 

4  E.g.,  the  Treaty  of  1887  with  Peru,  Treaties  of  the  United  States, 
p.  1196.  sS3^ 

6  Commentaries  (Abdy's  ed.),  ch.  viii,  p.  342. 


ORDINARY    NEUTRAL    COMMERCE  661 

and  the  goods  of  an  enemy  found  in  the  vessel  of  a  friend  are 
lawful  prize." 1  The  decisions  of  the  Supreme  Court  were  to 
the  same  effect.  The  attitude  of  the  United  States,  therefore, 
has  been  that  of  a  power  which  admitted  the  obligation  of 
the  old  rules  where  they  were  not  overridden  by  special 
agreement,  but  desired  to  see  them  superseded  by  the  more 
modern  doctrine.  Great  Britain,  on  the  other  hand,  not  only 
maintained  the  ancient  law  of  maritime  capture,  but  held  it 
to  be  in  itself  just  and  satisfactory.  Rather  than  give  it  up 
she  faced  the  two  great  hostile  leagues  known  as  the  Armed 
Neutralities  of  1780  and  1800.  She  made  very  few  treaties 
setting  it  aside  in  favor  of  the  principle  that  the  flag  covers 
the  cargo,  and  took  the  first  opportunity  of  getting  rid  of 
any  engagement  of  the  kind  into  which  circumstances  had 
compelled  her  to  enter. 

Hitherto  we  have  placed  the  principle  of  the  character  of 
the  vehicle  in  sharp  opposition  to  the  principle  of  the  owner- 
ship of  the  goods,  as  a  means  of  determining  their  liability 
to  capture.  But  it  is  quite  possible  to  combine  the  two,  and 
take  as  a  guide  to  practice  that  part  of  each  which  is  most 
unfavorable  to  neutrals,  or  that  part  which  is  most  favorable 
to  them.  If  we  follow  the  principle  of  ownership  when  it 
bears  hardly  on  neutral  trade,  we  arrive  at  the  rule  that  the 
goods  of  an  enemy  on  board  the  ship  of  a  friend  are  good 
prize  ;  and,  if  we  do  the  same  with  the  principle  of  the  nation- 
ality of  the  vessel,  we  obtain  the  rule  that  the  goods  of  a 
friend  on  board  the  ship  of  an  enemy  are  good  prize.  Com- 
bining the  two  we  reach  the  severe  conclusion  that  Enemies' 
goods  in  neutral  ships  and  neutral  goods  in  enemies'  ships  are 
liable  to  capture.  On  the  other  hand,  if  we  take  that  portion 
of  the  operation  of  each  of  our  two  principles  which  is  most 
favorable  to  neutral  trade,  they  work  out  into  the  rule  that 
Neutral  goods  in  enemies'  ships  and  enemies''  goods  in  neutral 
ships  are  not  liable  to  capture.  We  see  then  that  neutrals  may 
be  subjected  to  a  combination  of  the  more  severe  or  the  more 
i  Wharton,  International  Law  of  the  United  States,  §  342. 


662  ORDINARY   NEUTRAL   COMMERCE 

lenient  portions  of  each  of  the  two  main  doctrines  as  to  mari- 
time capture.  The  harsher  practice  was  followed  by  France 
in  the  sixteenth  and  seventeenth  centuries,  though  sometimes 
she  seems  to  have  fallen  back  upon  the  rules  of  the  Consolato, 
and  in  the  latter  part  of  the  period  she  bound  herself  by 
several  treaties  to  adopt  towards  the  co-signatory  powers  the 
principle  of  the  freedom  of  hostile  property  under  the  neutral 
flag.  But  when  Louis  XIV  was  at  the  height  of  his  power 
he  made  the  usual  French  practice  harsher  still  by  the  famous 
Marine  Ordinance  of  1681,  which  is  called  by  Azuni  "le 
chef-d'oeuvre  de  la  legislation  etablie  par  cet  incomparable 
monarque."  1  It  not  only  condemned  neutral  goods  carried 
in  enemies'  ships,  but  also  declared  that  neutral  ships  were 
liable  to  condemnation  for  carrying  enemies'  goods.  The 
doctrine  that  enemy  property  infected  with  its  hostile  char- 
acter whatever  neutral  property  it  was  brought  into  contact 
with  was  followed  by  France  till  1744,  and  by  Spain  from 
1704  till  the  former  date,  when  a  French  Ordinance  gave 
freedom  from  capture  to  neutral  vessels  laden  with  enemies' 
goods  and  the  Spanish  Government  changed  its  naval  policy 
in  accord  with  its  powerful  ally.  The  varying  needs  and 
circumstances  of  the  great  maritime  struggle  with  England 
caused  the  French  rules  of  capture  at  sea  to  vary  with 
bewildering  rapidity  in  the  latter  half  of  the  eighteenth  cen- 
tury and  the  first  years  of  the  nineteenth.2  The  termina- 
tion of  the  conflict  left  France  with  her  traditional  policy  of 
capturing  neutral  goods  in  enemies'  ships,  without  the  added 
severity  of  the  condemnation  of  neutral  vessels  for  carrying 
enemies'  goods,  while  England  still  adhered  to  the  old  practice 
of  making  prize  of  enemies'  goods  under  a  neutral  flag.  Thus 
when  in  1854  England  and  France  were  allied  against  Russia 
there  seemed  no  escape  for  neutral  trade.  But  the  two 
powers  felt  that  it  was  neither  desirable  nor  possible  to  revive 
the  severities  of  a  bygone  age,  and  agreed  that  during  the 

1  Droit  Maritime  de  V Europe,  vol.  I,  ch.  iii,  Art.  14. 
*  Dupuis,  La  Guerre  Maritime,  §§  44-50,  64. 


ORDINARY   NEUTRAL   COMMERCE  663 

war  they  would  not  capture  enemies'  goods  in  neutral  vessels 
or  neutral  goods  in  enemies'  vessels. 

This  brings  us  to  a  combination  of  the  more  favorable 
aspects  of  the  two  great  doctrines  on  the  subject  of  maritime 
capture.  An  attempt  was  made  in  1752,  by  the  Prussian 
commissioners  who  reported  to  Frederick  the  Great  on  what 
is  known  as  the  Silesian  Loan  Controversy,1  to  show  that  the 
capture  of  enemies'  goods  on  neutral  vessels  was  contrary  to 
the  law  of  nations.2  But  their  arguments  were  extremely 
weak,  and  it  was  admitted  on  all  sides  that  the  British  reply 
shattered  their  case  to  pieces.3  The  Armed  Neutralities  of 
1780  and  1800  endeavored  to  establish  the  rule  of  Free  ships, 
free  goods,  without  the  logical  accompaniment  of  Enemy  ships, 
enemy  goods.*  The  principles  of  the  first  Armed  Neutrality 
had  been  accepted  by  all  the  chief  continental  powers  when 
the  peace  of  1783  put  an  end  for  a  time  to  the  application  of 
any  rules  of  warfare  at  sea.  But  hardly  had  the  French 
Revolution  initiated  the  next  great  cycle  of  European  wars, 
when  Europe  made  haste  to  abandon  the  maritime  code  to 
which  many  of  its  states  had  pledged  themselves  a  few  years 
before.  Again,  however,  the  naval  preponderance  of  Great 
Britain,  and  the  severity  with  which  she  used  it  in  the  matter 
of  colonial  trade,  raised  a  feeling  of  jealous  hostility  against 
her.  Neutral  states  found  that  their  commerce  did  not  pros- 
per as  fully  as  they  had  hoped,  and  in  1800  Russia  headed 
a  movement  which  had  for  its  object  to  cripple  the  principal 
maritime  belligerent  by  reviving  the  Armed  Neutrality  of 
twenty  years  before.  The  Baltic  powers  joined  the  league ; 
but  within  a  few  months  it  was  broken  up  owing  to  the 
death  of  .the  Emperor  Paul  and  the  vigorous  action  of  the 
British  Government.5  Then  followed  a  period  of  confusion. 

1  See  §  176. 

2  C.  de  Martens,  Causes  Celebres,  vol.  II,  cause  premiere. 

»  Manning,  Law  of  Nations  (Amos's  ed.),  bk.  V,  ch.  vi,  §  2. 

*  C.  de  Martens,  Recueil,  vol.  I,  pp.  193,  194,  and  vol.  II,  pp.  215-219. 

6  Wheaton,  History  of  the  Law  of  Nations,  part  III,  §§  14-20. 


664  ORDINARY   NEUTRAL   COMMERCE 

Every  European  power  was  drawn  into  the  conflict  at  one 
time  or  another,  and  some  were  at  war  with  scarcely  any 
intermission  till  the  general  peace  of  1815.  The  signatories 
of  the  Armed  Neutrality  trampled  as  belligerents  upon  the 
doctrines  they  had  championed  as  neutrals;  while  Great 
Britain  and  France  vied  with  one  another  in  attacks  upon 
innocent  commerce,  each  justifying  its  severities  on  the  plea 
that  they  were  adopted  in  retaliation  for  illegal  acts  com- 
mitted by  the  other.1  At  the  end  of  the  struggle  no  definite 
code  of  maritime  capture  had  received  universal  acceptance. 
It  was  left  for  peaceful  agreement  to  bring  about  in  another 
generation  what  force  had  failed  to  effect  in  the  great  world- 
conflict  which  centred  round  Revolutionary  and  Napoleonic 
France.  , 

§243 

We  have  just  seen  how  the  states  who  were  allied  against 
Russia  in  the  Crimean  War  pledged  themselves  at  its  com- 
The  Declaration  mencement  to  act  throughout  it  on  the  prin- 
ciple that  they  would  capture  neither  the  goods 
of  an  enemy  in  the  vessel  of  a  friend  nor  the  goods  of  a 
friend  in  the  vessel  of  an  enemy,  reserving,  however,  for  the 
operation  of  the  ordinary  law  cases  of  carrying  contraband 
or  attempting  to  run  blockade.  At  the  close  of  the  war  the 
powers  assembled  in  conference  at  Paris  agreed  upon  a  Dec- 
laration concerning  Maritime  Law,  which  must  not  be  con- 
founded with  the  Treaty  of  Paris,  though  it  was  drawn  up 
and  signed  by  the  same  plenipotentiaries.  Further,  they 
pledged  themselves  to  invite  the  accession  of  other  powers, 
which  was  given  with  a  close  approach  to  unanimity.  But 
a  little  group  refused  for  various  reasons  to  bind  them- 
selves. The  most  important  of  them,  the  United  States,  de- 
clined because  the  exemption  of  private  property  from  capture 
at  sea  was  not  provided  for.2  China,  Spain,  and  Mexico  were 

1  Manning,  Law  of  Nations  (Amos's  ed.),  bk.  V,  chs.  vi,  x,  xi. 
a  See  §  193. 


ORDINARY   NEUTRAL  COMMERCE  665 

the  other  dissentients,  together  with  a  few  South  American 
Republics.  Of  these,  Spain  and  Mexico  gave  in  their  adhesion 
at  the  Hague  Conference  of  1907  ;  and  the  United  States 
have  always  acted  as  if  they  were  a  signatory  power.  There 
is,  therefore,  something  barely  distinguishable  from  general 
consent  at  the  back  of  the  Declaration.  It  was  adopted  on 
April  16,  1856,  and  two  of  its  articles  have  a  most  important 
bearing  on  the  question  under  discussion  at  the  present  mo- 
ment. The  second  declares  that  "  The  neutral  flag  covers 
enemy's  goods  with  the  exception  of  contraband  of  war," 
and  the  third  lays  down  that  "  neutral  goods,  with  the  ex- 
ception of  contraband  of  war,  are  not  liable  to  capture  under 
the  enemy's  flag." 1  It  will  be  seen  that  they  give  the  sanction 
of  general  agreement  to  the  principle  that  free  ships  make 
free  goods  without  the  usual  corollary  that  enemy  ships  make 
enemy  goods.  The  adhesion  of  Great  Britain  to  this  agree- 
ment marks  the  complete  victory  of  commercial  considerations 
over  the  rules  of  the  Consolato  del  Mare.  She  had  stood 
out  long  for  the  older  and  severer  practice ;  but  in  the  end 
she  saw  that  her  position  as  a  great  trading  nation,  disposed 
in  the  main  to  peaceful  courses  and  therefore  likely  to  be 
neutral  in  subsequent  wars,  rendered  it  advisable  for  her  to 
accept  provisions  under  which  her  commerce  would  gain 
immensely  as  long  as  she  was  not  a  belligerent.  The  vast 
growth  of  her  carrying  trade  since  1856  has  justified  the 
foresight  of  her  statesmen,  though  we  have  seen  reason  to 
believe  that  her  interests  would  be  served  more  effectually,  if 
she  would  go  further  and  assent  to  the  total  abolition  of  the 
capture  of  private  property  at  sea  in  time  of  war,  with  the 
usual  exceptions  against  contraband,  blockade-running  and 
unneutral  service.2  None  of  the  powers  which  refused  to 
sign  the  Declaration  objected  to  its  second  and  third  articles. 
Those  of  them  who  have  been  engaged  in  war  since  1856 
have  respected  enemy  goods  in  neutral  vessels  as  well  as 
neutral  goods  in  enemy  vessels.  In  the  great  conflict  between 
1  Higgins,  The  Hague  Peace  Conferences,  p.  2.  2  See  §  194. 


666  ORDINARY   NEUTRAL  COMMERCE 

North  and  South  in  the  United  States  both  parties  agreed 
to  observe  all  the  articles  of  the  Declaration  except  the  first, 
and  did  in  fact  observe  them  all.  The  Hispano- American 
War  of  1898  was  waged  between  two  non-signatory  powers, 
but  both  of  them  acted  on  all  the  articles  of  the  Declara- 
tion. 

The  freedom  of  enemy  property  from  molestation  under 
the  flag  of  a  friend  is  a  concession  made  to  neutrals  ;  and  in 
respect  of  it  two  questions  have  been  raised.  The  first  asks 
whether  belligerents  who  have  signed  the  Declaration  of 
Paris  are  bound  to  give  the  benefit  of  it  to  neutrals  who 
have  refused  their  signatures.  We  reply  that  such  a 
privilege  can  hardly  be  refused,  in  spite  of  the  statement  in 
the  last  clause  of  the  Declaration  that  "it  is  not  and  shall 
not  be  binding  except  between  those  powers  who  have 
acceded  or  shall  accede  to  it."  For  in  the  period  during 
which  it  has  been  in  existence,  it  has  been  observed  in  all 
maritime  conflicts.  The  unbroken  usage  of  more  than 
half  a  century  can,  therefore,  be  pleaded  on  behalf  of  the 
binding  nature  of  its  rules,  and  surely  this  is  enough  to 
establish  them  as  International  Law  on  the  basis  of  general 
consent,  quite  apart  from  any  question  of  formal  accession 
to  a  law-making  document.  Non-signatory  neutrals,  who 
have  themselves  when  belligerents  acted  upon  the  principle 
that  the  flag  covers  the  cargo,  would  have  reason  to  feel 
aggrieved  should  a  power  at  war  make  the  fact  that  they 
have  not  acceded  to  the  Declaration  an  excuse  for  depriving 
their  commerce  of  the  protection  it  affords.  In  the  Franco- 
German  war  of  1870-1871  both  sides  applied  its  principles 
to  the  property  of  American  and  Spanish  subjects,  though 
neither  the  United  States  nor  Spain  had  signed  it ;  and  when 
the  latter  powers  were  themselves  belligerents  in  1898,  they 
gave  the  benefit  of  the  Declaration  to  all  neutrals.  A 
similar  answer  must  be  made  to  the  further  inquiry  whether, 
when  one  belligerent  has  signed  the  Declaration  of  Paris  and 
the  other  has  not,  the  former  is  bound  to  act  upon  it  in 


OBDINARY  NEUTRAL  COMMERCE  667 

dealing  with  neutrals  whose  governments  have  acceded  to  it. 
There  is  room  for  doubt  if  we  confine  ourselves  to  the  mere 
words  of  the  document ;  but  when  we  come  to  examine 
practice  we  find  a  strong  tendency  in  favor  of  the  more 
liberal  interpretation.  When  England  and  France  were  at 
war  with  China,  a  non-signatory  power,  in  1860,  they  applied 
the  second  and  third  articles  of  the  Declaration  to  neutral 
trade  ;  and  Chili  and  Peru  did  the  same  when  they  were 
allied  against  Spain  in  1885. *  Indeed,  it  is  far  more  likely 
that  the  belligerent  who  has  not  acceded  to  the  Declaration 
will  be  induced  to  observe  its  rules  than  that  the  belligerent 
who  has  acceded  to  them  will  feel  free  to  ignore  them. 
The  war  at  the  end  of  the  nineteenth  century  between  China 
and  Japan  affords  an  apt  illustration.  From  its  begining  in 
1894  to  its  end,  China,  the  non-signatory  power,  made  no 
attempt  to  capture  Japanese  goods  under  a  neutral  flag  or 
neutral  goods  under  a  Japanese  flag,  while  Japan,  the  signa- 
tory power,  showed  no  sign  of  a  wish  to  ignore  its  obligations 
towards  neutrals  on  the  plea  that  they  were  not  shared  by 
China.  The  notion  of  a  return  to  the  old  order  is  an  idle 
dream.  Those  who  entertain  it  have  failed  to  grasp  either 
the  power  of  modern  commerce  or  the  strength  of  the  moral 
ideas  that  tend  to  restrict  the  destructiveness  of  warfare.2 
What  neutral  interests  were  able  to  obtain  in  1856  they  will 
be  able  to  retain  in  future  emergencies.  We  may  adopt  with 
confidence  the  view  of  one  of  the  greatest  of  modern  authori- 
ties, and  hold  that  "  the  principle  that  the  flag  covers  the 
cargo  is  forever  secured."  8 

1  Twist,  Belligerent  Eight  on  the  High  Sean,  p.  8. 

2  Report  of  Drafting  Committee  of  the  Naval  Conference  of  1908-1909, 
ch.  vi. 

8  Mahan,  Influence  of  Sea  Power  on  History,  ch.  I,  p.  84. 


668  ORDINARY  NEUTRAL   COMMERCE 

§244 

The  Declaration  of  Paris,  then,  has  deprived  belligerents 
of  the  right  to  interfere  with  ordinary  innocent  sea-borne 
Present  condition  trade  between  their  enemies  and  the  rest  of  the 
ulry'marittaw"  world,  unless  it  consists  of  enemy  goods  carried 
capture.  jn  enemy  ships.  Enemy  ships  engaged  in 

carrying  neutral  goods  may  still  be  seized ;  and  a  prize  court 
would  condemn  the  ships  while  it  released  the  goods.  Their 
neutral  owners  would  suffer  greatly  from  delay  and  loss  of 
market,  but  they  would  not  be  deprived  of  their  property 
in  the  things  themselves.  We  cannot,  however,  leave  the 
matter  here.  It  is  not  so  simple  as  it  appears.  Even  enemy 
ships  and  goods  of  certain  kinds  are  exempt  from  capture,  as 
for  instance  hospital  ships,  inshore  fishing  boats,  vessels 
charged  with  scientific  missions,  postal  correspondence,  and 
books  and  works  of  art  on  their  way  to  a  public  institution 
in  the  enemy's  country.1  On  the  other  hand,  quite  apart 
from  the  difficulty  of  agreement  among  the  nations  as  to  the 
criterion  of  enemy  property,  vessels  owned  by  neutrals  and 
purporting  to  be  neutral  will  be  treated  as  enemy  if  chartered 
by  the  enemy,  or  sailing  under  his  orders,  or  trading  under 
a  license  from  him,  or  even  if  they  use  habitually  his  flag 
and  pass.2  Great  Britain  backed  by  several  important  mari- 
time powers  still  holds  that  if  a  belligerent  throws  open  in 
time  of  war  to  neutrals  a  coasting  or  colonial  trade  which  it 
confined  to  its  own  subjects  in  time  of  peace,  its  foe  may 
treat  all  neutral  merchantmen  who  take  advantage  of  the  per- 
mission as  enemy  vessels.  Another  group  of  powers,  headed 
by  the  United  States,  holds  strongly  to  the  contrary  opinion ; 
and  unless  a  settlement  is  soon  reached,  the  question  may 
become  acute  and  dangerous  in  a  great  maritime  war.3  An- 
other matter  as  to  which  differences  of  opinion  are  likely  to 
arise  is  concerned  with  armed  enemy  merchantmen.  Liners 

1  See  §§  182,  183.  2  See  §  181. 

8  British  Parliamentary  Papers,  Miscellaneous,  No.  4  (1909),  p.  100. 


ORDINARY  NEUTRAL  COMMERCE  669 

and  other  important  vessels  of  great  speed  may  possibly  be 
sent  to  sea  in  future  wars  with  one  or  two  stern-firing  guns 
in  order  to  give  them  a  chance  of  keeping  at  a  distance  in  a 
chase  an  unarmored  enemy  cruiser.  Would  her  armament 
disentitle  a  neutral  merchant  to  send  his  goods  by  her?  Or 
would  they  be  liable  to  seizure  and  condemnation  only  if  the 
merchant  himself  had  aided  in  procuring  the  armament  or 
making  the  resistance?  The  'former  is  the  English  doctrine, 
the  latter  the  American ;  and  doubtless  other  states  would 
take  sides,  if  the  case  arose.  We  see  here,  as  we  shall  see 
again  in  dealing  with  blockade  and  contraband,  that  the 
Declaration  of  Paris,  excellent  as  it  is,  requires  an  authorita- 
tive commentary. 

§245 

We  cannot  leave  the  subject  of  ordinary  neutral  commerce 
without  a  brief  notice  of  the  controversy  with  regard  to 
convoy.  It  is  now  happily  ended :  but  in  its 

.    '  ,  Convoy. 

time  it  produced  two  or  three  wars,  and  was 
always  threatening  to  burst  out  afresh,  like  a  volcano,  and 
scatter  destruction  around.  It  arose  out  of  the  demand  that 
neutral  merchantmen  should  be  free  from  belligerent  search 
when  under  the  escort  of  a  war-ship  or  war-ships  of  their  own 
country,  whose  commander  was  willing  to  pledge  his  word 
that  nothing  in  the  nature  of  their  destination,  or  the  charac- 
ter of  any  persons  or  things  on  board,  rendered  them  liable 
to  belligerent  capture. 

The  first  attempt  to  defeat  in  this  way 'the  ordinary  bel- 
ligerent right  of  search  was  made  by  Sweden  in  1653.  Peace 
supervened  in  a  few  months,  and  the  question  slumbered  in 
consequence.  It  was  not  seriously  raised  again  till  the  latter 
half  of  the  eighteenth  century,  when  the  conduct  of  the  Dutch 
roused  it  to  vigorous  life.  As  neutrals  they  claimed  for  their 
merchantmen  exemption  from  belligerent  search  when  under 
the  convoy  of  their  ships  of  war ;  and  therefore  as  belliger- 
ents they  were  bound  to  grant  to  others  what  they  had 


670  ORDINARY  NEUTRAL  COMMERCE 

demanded  for  themselves.  Accordingly  in  January,  1781, 
they  ordered  their  cruisers  to  refrain  from  searching  neutral 
ships  under  convoy,  if  the  commander  of  the  convoying  vessel 
declared  them  innocent  of  offence.1  Soon  after  a  number  of 
powers  made  mutual  concessions  of  the  privilege  by  special 
stipulations.  The  United  States  were  among  the  foremost. 
Between  1782  and  1800  they  agreed  to  the  insertion  of  the 
provision  under  consideration  in  no  less  than  six  treaties.2 
And  not  only  have  they  continued  this  diplomatic  policy ; 
but  they  have  also  instructed  their  naval  officers  not  to  per- 
mit search  of  American  vessels  under  their  escort.3  But, 
nevertheless,  American  writers  and  jurists  have  held  that, 
though  belligerents  may  by  treaty  contract  themselves  out  of 
their  common  law  right  of  visit  and  search,  they  cannot  be 
compelled  in  the  absence  of  such  agreement  to  take  the  word 
of  a  neutral  officer  in  lieu  of  the  evidence  of  their  own  senses.4 
This  was  the  British  view,  with  the  addition  that  any  change 
in  the  law  was  to  be  resisted  as  dangerous.  Great  Britain 
therefore  declined  to  enter  into  any  of  the  agreements  on  the 
subject  of  convoy  which  were  so  common  at  the  end  of  the 
eighteenth  century,  and  insisted  upon  the  full  exercise  of  her 
belligerent  right.  This  course  of  conduct  brought  her  into 
sharp  collision  with  some  of  the  neutral  states.  The  most 
important  of  these  controversies  arose  in  1798  when  a  British 
squadron  captured  in  the  English  Channel  a  number  of  neu- 
tral Swedish  merchantmen  under  the  escort  of  a  Swedish 
frigate.  They  were  condemned  next  year  by  Lord  Stowell 
in  a  great  judgment  delivered  in  the  case  of  one  of  them, 
called  the  Maria*  He  held  that  the  right  of  search  was  "  an 
incontestable  right  of  the  lawfully  commissioned  cruisers  of 
a  belligerent  nation,"  that  "  the  authority  of  the  sovereign 

1  Manning,  Law  of  Nations  (Amos's  ed.),  bk.  V,  ch.  xi. 

2  Treaties  of  the  United  States,  pp.  328,  725,  752,  903,  1046,  1091. 
8  U.  S.  Naval  War  Code,  Art.  30. 

4  E.g.,  Wheaton,  International  Law,  §§  525-528  ;  Woolsey,  International 
Law,  §  209. 

6  Robinson,  Admiralty  Reports,  vol.  I,  pp.  840-379. 


ORDINARY  NEUTRAL  COMMERCE  671 

of  the  neutral  country  being  interposed  in  any  manner  of 
mere  force  cannot  legally  vary  the  right,"  and  that  "  the  pen- 
alty for  the  violent  contravention  of  this  right  is  the  confisca- 
tion of  the  property  so  withheld  from  visitation  and  search." 
The  resistance  to  search  in  this  particular  case  was  very  slight. 
No  shot  was  fired  and  no  blood  was  shed,  and  yet  the  captured 
vessels  were  condemned.  But  there  can  be  little  doubt  of 
the  soundness  of  the  legal  doctrines  laid  down  by  the  great 
English  judge,  whatever  may  be  thought  of  the  severity  with 
which  he  applied  them.  The  Danish  jurist  Schlegel,  who 
attempted  to  argue  against  them,  relied  upon  a  distinction 
between  a  Positive  Law  of  Nations  and  a  Natural  Law  of 
Nations.  He  admitted  that  the  former  allowed  the  search 
and  capture  of  neutral  vessels ;  but  asserted  that  the  latter 
knew  nothing  of  such  a  right,  and  based  upon  this  presumed 
contradiction  the  conclusion  that  belligerents  cannot  have  a 
greater  latitude  in  this  respect  than  neutrals  consent  to  al- 
low.1 Influenced  by  arguments  such  as  this,  and  by  obvious 
considerations  of  self-interest,  the  Armed  Neutrality  of  1800 
added  to  the  four  articles  of  its  predecessor  a  fifth,  to  the 
effect  that  the  declaration  of  an  officer  in  command  of  a  neu- 
tral ship  of  war  that  there  was  nothing  contraband  on  board 
the  vessels  convoyed  by  him  should  suffice  to  prevent  bel- 
ligerent search.2  The  second  league  of  the  Baltic  powers 
came  to  an  end  in  June,  1801,  when  Russia  signed  a  treaty 
with  Great  Britain  which  admitted  the  right  of  regular  war- 
ships to  search  neutral  vessels  under  convoy,  but  excluded 
privateers  and  stipulated  for  a  special  mode  of  procedure. 
The  papers  of  the  convoyed  vessels  were  first  to  be  examined 
on  board  the  convoying  vessel,  and  only  if  reasons  for  suspi- 
cion arose  were  the  merchantmen  themselves  to  be  searched.3 
The  constant  shifting  of  sides  in  the  great  continental  wars 

1  Visitation  of  Neutral  Vessels  under  Convoy  (English  translation  pub- 
lished in  London,  1801),  pp.  67-70. 

2  C.  de  Martens,  Recueil,  vol.  II,  pp.  216-219. 
8  Ibid.,  vol.  VII,  p.  263. 


G72  ORDINARY   NEUTRAL   COMMERCE 

soon  brought  this  treaty  to  an  end ;  and  when  fresh  arrange- 
ments were  made  they  were  silent  on  the  subject  of  convoy. 
The  matter  was  not  mentioned  in  the  Declaration  of  Paris ; 
and  the  fact  that  the  opposing  views  we  have  described  re- 
mained unreconciled,  opened  out  prospects  of  serious  trouble 
in  the  future.1  England  still  took  her  stand  on  the  integrity 
of  the  right  of  search,  while  all  the  maritime  powers  of  the 
European  continent  instructed  their  commanders  at  sea  to 
rest  content  with  the  declaration  of  a  convoying  officer. 
When  Japan  emerged  as  a  great  naval  power  she  adopted 
the  continental  position,  and  in  1894  applied  it  in  her  war 
with  China.  On  the  outbreak  of  the  war  with  Russia  in 
1904  she  again  acted  on  it,  with  the  provisos  that  the  dec- 
laration of  the  officer  in  command  of  the  convoy  must  be  in 
writing,  and  that  in  cases  of  grave  suspicion  the.  immunity 
did  not  apply.2  English  statesmen  gradually  came  to  see 
that  they  could  not  insist  on  the  right  to  capture  neutral 
vessels  under  convoy  against  the  opposition  of  the  rest  of 
the  world,  and  a  conviction  of  its  diminishing  value  helped  to 
bring  about  a  determination  to  abandon  it.  Now  that  speed 
is  an  essential  in  most  mercantile  voyages,  steamers  will  not 
wait  while  a  convoy  is  made  up,  as  sailing  vessels  did  a  cen- 
tury ago.  Influenced  by  these  considerations  Great  Britain, 
at  the  Naval  Conference  of  1908-1909,  expressed  her  willing- 
ness to  give  up  her  old  position,  if  reasonable  securities  against 
the  abuse  of  the  desired  immunity  could  be  obtained.  These 
the  other  powers  were  quite  willing  to  concede,  and  a  satis- 
factory settlement  of  the  long-standing  difficulty  was  reached 
in  the  Declaration  of  London  of  1909.3  First  the  principle 
that  "  neutral  vessels  under  national  convoy  are  exempt  from 
search  "  was  laid  down  as  the  law  of  the  future ;  and  then  the 

1  For  an  admirable  historical  account  of  the  matter,  see  Dupuis,   La 
Guerre  Maritime,  §§  244-248. 

2  Eegulations  Governing  Captures  at  Sea,  ch.  v,  Art.  33,  to  be  found 
in  U.  S.  Naval  War  College,  International  Law  Topics  and  Discussions, 
1905,  p.  197.  8  See  Articles  61,  62. 


ORDINARY   NEUTRAL  COMMERCE  673 

conditions  and  qualifications  were  stated.  The  commander 
of  a  belligerent  war-ship  is  entitled  to  obtain  in  writing  from 
the  commander  of  the  convoy  "all  information  as  to  the  char- 
acter of  the  vessels  and  their  cargoes  that  could  be  obtained 
by  search."  If  this  does  not  satisfy  him,  he  must  communi- 
cate his  suspicions  to  the  commander  of  the  convoy,  who  must 
himself  investigate  the  matter  on  the  spot,  and  hand  a  copy 
of  his  written  report  to  the  commander  of  the  war-ship.  If 
it  goes  against  the  vessel,  and  the  commander  of  the  convoy 
deems  her  capture  justifiable,  he  must  withdraw 'his  protec- 
tion from  her,  and  allow  her  to  be  seized  by  the  belligerent 
cruiser.  If  the  two  officers  disagree  as  to  the  character  of 
the  vessel  or  her  cargo  when  the  facts  are  before  them,  they 
can  do  nothing  but  part.  The  matter  must  then  be  left  for 
diplomacy  to  settle.  The  plan  thus  outlined  seems  fairer 
and  better  in  every  way  than  the  old  crude  demand  that  the 
mere  word  of  the  officer  in  command  of  the  convoy  must  be 
accepted  without  demur.  Proof  such  as  he  could  have  gained 
by  the  evidence  of  his  own  eyesight  in  a  search  must  be  laid 
before  belligerent  commanding  officer.  If  he  is  suspicious, 
he  may  be  asked  by  the  convoying  officer  to  accompany  him 
on  his  search,  though  he  cannot  demand  to  come  as  a  matter 
of  right.  Palpable  guilt  will  result  in  the  handing  over  to 
him  of  the  guilty  vessel.  Only  in  the  event  of  a  difference 
of  opinion  with  the  convoying  officer  as  to  the  law  applicable 
to  the  case  must  he  hold  his  hand  and  retire  unsatisfied.1  But 
the  other  provisions  of  the  Declaration  will  do  much  to  pre- 
vent such  a  deadlock.  They  clear  up  numerous  points  con- 
nected with  contraband,  blockade,  and  unneutral  service,  and 
thus  diminish  the  likelihood  of  differences  due  to  different 
national  standpoints. 

It  is  generally  agreed  that  a  neutral  cruiser  ought  on  no 
account  to  offer  convoy  to  the  merchant  vessels  of  either  bel- 
ligerent, and  that  neutral  merchantmen  attach  themselves  at 

1  Report  of  the  Drafting  Committee  of  the  Naval  Conference,  see  British 
Parliamentary  Papers,  Miscellaneous,  No.  4  (1909)  pp.  62,  63. 


674  ORDINARY  NEUTRAL   COMMERCE 

their  peril  to  a  fleet  convoyed  by  belligerent  cruisers.  In  so 
doing  they  render  themselves  liable  to  capture  by  the  war 
ships  of  the  other  side.  The  act  of  sailing  under  belligerent 
convoy  is  in  itself  a  violation  of  neutrality,  and  the  vessel 
which  is  guilty  of  it  may  be  condemned  by  a  prize  court,  even 
though  her  voyage  would  have  been  perfectly  innocent  had 
she  pursued  it  alone. 


CHAPTER   V 

BLOCKADE 

§246 

BLOCKADE  as  a  warlike  operation  governed  by  special  rules 
is  wholly  maritime.  On  land  it  is  always  an  offence  to 
attempt  to  pass  through  the  lines  of  an  army  The  nature  and 
without  permission  ;  and,  if  they  happen  to  SJ0*7 
surround  a  fortress,  the  operation  of  ordinary  rules  cuts  off 
all  communication  between  it  and  the  outside  world.  At 
sea,  however,  passage  through  a  fleet  is  not  usually  inter- 
dicted ;  but  naval  belligerents  claim  a  right  to  stop  all  inter- 
course between  neutrals  and  an  enemy  port  or  coast-line 
which  they  are  able  to  watch  with  a  force  sufficient  to  intercept 
and  capture  vessels  attempting  ingress  or  egress.  There 
can  be  no  doubt  about  the  validity  of  this  claim,  though  it 
amounts  to  nothing  less  than  the  interdiction  of  all  neutral 
commerce,  even  the  most  innocent,  in  a  given  maritime  zone. 
It  has  been  sanctioned  first  by  usage  and  then  by  express 
agreement.  The  submission  of  neutrals  to  so  extreme  a 
demand  is  probably  accounted  for  by  the  fact  that  when  it 
was  first  made  they  were  familiar  with  attempts  on  the  part 
of  a  belligerent  to  cut  off  all  trade  between  them  and  its 
enemy.  In  such  circumstances  to  confine  the  claim  to  block- 
aded ports  and  coast-lines  savored  more  of  concession  than 
aggression. 

Blockade  as  a  systematized  method  of  maritime  warfare 

owes  its  origin  to  the  Dutch.     Grotius  in  1625  hesitatingly 

allowed  severities   against   those   who   introduced   supplies 

into  a  port  that  was  closed,  when  its  surrender  was  imminent 

or  peace  was  expected.1     The  States  General  in  1630  went 

i  De  Jure  Belli  ac  Pacts,  bk.  in,  ch.  i,  5. 

675 


676  BLOCKADE 

much  further,  and  denounced  the  penalty  of  confiscation  of 
ship  and  cargo  against  neutrals  attempting  to  enter  or  leave 
those  ports  of  Flanders  which  the  Dutch  fleet  was  blockading, 
or  found  in  such  circumstances  as  to  leave  no  doubt  of  their 
intention  to  attempt  ingress,  or  captured  after  egress  on  their 
return  voyage.  They  thus  barred  all  trade  with  the  block- 
aded places,  whatever  the  nature  of  the  goods,  and  made  no 
limitation  as  to  an  expected  surrender  or  peace.  Moreover 
they  asserted  a  liberty  to  capture  on  the  high  seas  far  away 
from  the  area  under  investment,  if  only  the  intention  to 
enter  or  the  fact  of  exit  was  proven  by  reasonable  evidence.1 
From  this  time  onwards  blockade  of  some  sort,  as  distinct 
from  actual  siege,  became  a  frequent  incident  of  warfare. 
Naturally  there  was  at  first  a  considerable  amount  of  doubt 
about  the  new  practice.  But  during  the  eighteenth  century 
the  courts  and  jurists  of  the  leading  maritime  nations  gradu- 
ally elaborated  a  law  of  blockade.  It  was  matter  of 
general  agreement  that  neutral  governments  must  submit  to 
the  capture  of  their  subjects'  vessels  and  cargoes  when  a 
blockade  was  not  merely  proclaimed  on  paper,  but  maintained 
by  an  adequate  force,  though  now  and  again  attempts  were 
made  to  exercise  the  right  of  seizure  without  the  proper  ful- 
filment of  the  condition  on  which  it  depended.  Moreover 
the  exact  interpretation  of  that  condition  was  often  matter  of 
dispute.  On  this  and  other  questions  differences  arose  be- 
tween two  schools  of  thought,  which  we  may  name  after  the 
protagonist  on  each  side  the  English  and  the  French. 
France  gave  voice  to  the  prevalent  opinion  on  the  continent  of 
Europe,  and  the  United  States  adopted  in  practice  British 
views.  It  will  not  be  necessary  here  to  do  more  than  indi- 
cate the  chief  points  of  disagreement.  They  have  been 
brought  out  with  admirable  clearness  by  M.  Charles  Dupuis 
in  his  excellent  work  on  La  Guerre  Maritime  et  les  Doctrines 
Anglaises?  and  the  French  side  of  the  controversy  has  been 

1  Westlake,  International  Law,  part  II,  pp.  223,  224. 
a  See  chapter  vi. 


BLOCKADE  677 

expressed  with  skill  and  vigor  by  M.  Paul  Fauchille  in  his 
Du  Bloeus  Maritime.  Fortunately  this  stage  is  now  at  an 
end.  The  Declaration  of  London  of  1909  has  settled  the 
questions  in  dispute  by  an  equitable  compromise.  The 
most  powerful  maritime  states  of  the  world  are  parties  to  it 
and  there  is  a  confident  hope  that  most  of  the  other  powers 
will  give  in  their  adhesion.  The  ratification  of  the  Declara- 
tion has  been  delayed  because  of  the  extreme  importance  of 
constituting  the  International  Prize  Court  at  the  same  time; 
and  before  this  can  be  done  prize  procedure  in  England  must 
be  altered  by  domestic  legislation,  and  difficulties  connected 
with  the  Constitution  of  the  United  States  removed  by  inter- 
national negotiation.1  But  even  without  ratification  there  is 
good  ground  for  the  hope  that  in  the  event  of  war  the  rules 
of  the  Declaration  would  be  observed,  since  its  preliminary 
provision  declares  on  the  part  of  the  signatory  powers  that  its 
rules  "  correspond  in  substance  with  the  generally  recognised 
principles  of  International  Law."  It  follows  that  a  detailed 
record  of  past  disputes  would  have  chiefly  an  historical 
interest ;  but  nevertheless  some  knowledge  of  them  in  out- 
line is  necessary  in  order  to  understand  fully  the  present 
state  of  affairs. 

By  the  latter  half  of  the  eighteenth  century  the  strength 
of  Holland  at  sea  had  decayed  relatively  to  that  of  Great 
Britain,  and  from  being  the  strongest  champion  of  the  claims 
of  belligerents  she  had  become  an  advocate  of  neutral  rights. 
Great  Britain,  on  the  other  hand,  had  inclined  to  a  wide  in- 
terpretation of  belligerent  privileges  as  her  naval  power  in- 
creased. Neutrals  complained  that  she  exercised  the  right 
of  blockade  with  unwarrantable  severity.  They  accused  her 
of  sometimes  sending  no  adequate  force  to  support  her  proc- 
lamations of  closure,  and  of  constantly  carrying  on  her 
blockades  by  cruising  vessels,  instead  of  keeping  her  war- 
ships, as  they  contended  she  ought,  stationed  before  the 
blockaded  ports.  The  Armed  Neutralities  of  1780  and  1800 

i  See  §  192. 


678  BLOCKADE 

dealt  with  the  matter.  The  first  declared  that  no  port 
should  be  considered  blockaded  unless  there  was  evident 
danger  in  entering  from  the  proximity  of  a  belligerent 
squadron,  but  added  that  the  blockading  vessels  must  be 
stationary.  The  second  repeated  the  words  of  its  predeces- 
sor, and  placed  at  the  end  of  them  the  further  restriction 
that  a  vessel  approaching  the  blockaded  port  was  not  liable 
to  capture  unless  she  had  been  warned  of  the  existence  of 
the  blockade  by  the  commander  of  the  force  maintaining  it 
and  had  afterwards  attempted  to  enter.1  The  English  gov- 
ernment admitted  that  blockades  must  be  maintained  by  a 
force  sufficient  to  make  ingress  or  egress  difficult,  but  repu- 
diated any  obligation  to  keep  their  blockaders  stationary  or 
to  give  an  individual  warning  to  each  approaching  merchant- 
man. They  also  claimed  the  right  to  capture  at  any  point 
on  the  high  seas  vessels  which  could  be  shown  to  have  a 
blockaded  port  as  their  destination  with  full  knowledge  that 
the  blockade  existed,  and  to  make  a  seizure  during  any  part 
of  the  return  voyage  should  a  ship  succeed  in  passing  the 
lines  of  observation  without  being  captured.  In  their  view, 
as  Professor  Westlake  tersely  put  it,  the  offence  consisted 
not  "  in  passing  a  line  of  investment,  but  in.  communicating 
with  a  prohibited  spot."  2 

The  powers  of  the  Armed  Neutralities  soon  abandoned  as 
belligerents  most  of  the  principles  they  had  striven  to  en- 
force as  neutrals,  and  their  doctrine  of  blockade  was  thrown 
overboard  in  the  general  clearance,  though  from  it  eventually 
arose  the  French  practice  of  the  nineteenth  century,  with  its 
insistence  on  individual  warning,  its  restriction  of  the  area 
within  which  capture  is  permissible  to  the  sea  covered  by 
the  operations  of  the  blockading  squadron,  and  its  repudia- 
tion of  intention  as  the  test  of  guilt.  But  at  first  a  vast  and 
unjustifiable  increase  in  the  severity  of  belligerents  followed 
the  failure  of  the  attempt  to  settle  the  law  of  blockade  in  the 

1  C.  de  Martens,  Recueil,  vol.  I,  pp.  193, 194 ;  vol.  II,  pp.  216-219. 

2  International  Law,  part  II,  p.  233. 


BLOCKADE  679 

interests  of  neutrals.  In  the  Berlin  and  Milan  Decrees  of 
Napoleon,  and  the  retaliatory  Orders  in  Council  of  1806  and 
1807,  France  and  England  struck  wildly  at  each  other  in  utter 
disregard  of  the  commerce  of  neutral  powers.  Great  Brit- 
ain placed  in  the  position  of  blockaded  ports  all  coast  towns 
which  excluded  her  commercial  flag,  and  France  declared  the 
entire  coast  of  the  British  Isles  to  be  in  a  state  of  blockade 
at  a  time  when  she  dared  not  send  a  single  squadron  to  sea 
for  fear  of  its  capture  by  the  victorious  British  navy.1  The 
peace  of  1815  gave  an  opportunity  for  passions  to  cool  and 
reason  to  resume  its  sway  over  men's  minds.  The  process  of 
reflection  removed  difficulties,  and  in  1856  the  fourth  article 
of  the  Declaration  of  Paris  gave  the  sanction  of  express  con- 
sent to  the  generally  accepted  proposition  that  "  blockades 
to  be  binding  must  be  effective."  The  words  that  follow  re- 
quire an  impossibility  if  they  are  taken  in  the  strictest  literal 
sense.  They  define  an  effective  blockade  as  one  "  maintained 
by  a  force  sufficient  really  to  prevent  access  to  the  coast  of 
the  enemy."  A  small  boat  might  frequently  pass  in  the 
darkness  of  the  night  through  the  most  numerous  and  effi- 
cient blockading  force,  and  thus  obtain  the  access  the  pre- 
vention of  which  is  made  the  test  of  effectiveness.  It  is, 
however,  clear  from  the  explanations  given  by  the  leading 
statesmen  of  the  various  countries  which  signed  the  Declara- 
tion that  nothing  further  was  intended  than  the  assertion  of 
the  principle  that  there  must  be  a  real  and  pressing  danger 
in  any  attempt  to  pass  through.2  The  notion  that  the  Dec- 
laration of  Paris  gave  the  sanction  of  general  and  express 
consent  to  the  doctrine  of  blockade  advanced  by  the  Armed 
Neutralities  will  not  bear  examination.  No  doubt  it  insisted, 
as  they  did,  on  a  blockading  force  sufficient  to  constitute  a 
real  danger  to  would-be  blockade  runners,  but  it  did  not 
add,  like  them,  the  requirement  that  the  units  of  such  force 
should  be  stationary.  Had  it  done  so,  it  would  have  abolished 

i  Manning,  Law  of  Nations  (Amos's  ed.)»  bk.  V,  ch.  vl. 
»  Wheaton,  International  Law  (Dana's  ed),  note  233. 


680  BLOCKADE 

the  operation  it  professed  to  regulate.  A  line  of  vessels  an- 
chored before  a  hostile  port  would  be  so  easy  a  mark  for  tor- 
pedoes and  submarines  that  after  a  few  nights  not  one  of 
them  would  be  left.  No  state  would  risk  its  war-ships  under 
such  conditions.  Either  blockade  would  disappear  from  war- 
fare, or,  what  is  much  more  probable,  the  Declaration  of 
Paris  would  disappear  from  the  international  statute  book. 
Instead,  it  has  received  fresh  adhesions,  and  is  supported  by 
an  ever  increasing  weight  of  authority.  And  during  the 
half-century  of  its  existence  the  greatest  blockade  ever  car- 
ried on  by  cruising  vessels,  that  of  the  coast  of  the  Southern 
Confederacy  in  the  American  Civil  War,  was  acquiesced  in 
by  neutrals  without  a  protest.  Clearly  the  fourth  Article  of 
the  Declaration  covered  blockades  by  unanchored  cruisers, 
if  only  there  were  enough  of  them  to  render  difficult  and 
dangerous  access  to  the  port  or  coast-line  they  were  told  off 
to  watch.  It  settled  the  question  of  effectiveness  by  per- 
mitting the  British  practice,  which  was  also  that  of  the 
United  States,  while  it  does  not  forbid  observance  of  the 
requirements  of  the  Armed  Neutralities  to  any  power  that 
prefers  to  fulfil  them  regardless  of  the  safety  of  its  ships  and 
men.  It  was  silent  as  to  the  other  matters  in  dispute  ;  but 
the  omissions  which  were  necessary  in  1856  were  supplied  in 
1909  by  the  Declaration  of  London. 

§247 

It  will  be  convenient  now  to  describe  the  various  kinds  of 
blockade  and  explain  certain  terms  which  it  will  be  necessary 
The  various  kinds  to  use  in  giving  an  account  of  the  law  of  block- 
of  blockade.  ade  ag  get  forth  in  the  Declaration  of  London 

and  modern  usages  consistent  therewith. 

We  have  already  seen  what  is  meant  by  an  effective  blockade. 
It  is  well  described  in  the  United  States  Naval  War  Code  of 
1900  as  one  which  is  "  maintained  by  a  force  sufficient  to 
render  hazardous  the  ingress  to  or  egress  from  a  port."1 

1  See  Article  37. 


BLOCKADE  681 

When  such  a  force  is  in  operation  and  the  port  is  closed  by 
it,  there  is  a  blockade  de  facto.  When  diplomatic  notice  has 
been  given  that  certain  ports  or  coast-lines  are  under  block- 
ade, there  is  a  blockade  by  notification.  When  the  notification 
is  backed  up  by  no  force  or  an  inadequate  force,  there  is  a 
paper  blockade,  which  is  in  law  no  blockade,  but  a  lawless 
attempt  to  injure  neutral  trade  without  right.  A  strategic 
blockade  is  one  which  is  carried  on  with  a  view  to  the  ultimate 
reduction  of  the  place  blockaded,  whereas  a  commercial  block- 
ade has  for  its  object  the  diminution  of  the  resources  of  the 
enemy  by  cutting  off  his  external  commerce. 

When  a  commercial  blockade  on  a  large  scale  is  carried  on 
with  skill  and  efficiency,  it  inflicts  much  harm  on  neutrals, 
who  are  naturally  inclined  to  be  restive  under  it.  Unbroken 
usage  extending  back  for  more  than  two  centuries  is  amply 
sufficient  to  establish  its  legality  ;  but  the  arguments  of  those 
who  desire  to  see  it  forbidden  by  general  consent  have  much 
force,  and  deserve  careful  consideration.  In  1859  General 
Cass,  then  American  Secretary  of  State,  wrote  that  "the 
blockade  of  a  coast  .  .  .  with  the  real  design  of  carrying  on  a 
war  against  trade,  and  from  its  nature  against  the  trade  of 
peaceable  and  friendly  powers,  instead  of  a  war  against 
armed  men,  is  a  proceeding  which  it  is  difficult  to  reconcile  with 
reason  or  with  the  opinions  of  modern  times."1  If  we  add  to 
this  the  statement  that  in  many  cases  the  harm  done  by  com- 
mercial blockades  to  neutrals  is  greater  than  the  injury  they 
inflict  on  the  belligerent  against  whom  they  are  directed,  a 
strong  case  is  presented.  But  the  experience  of  the  United 
States  themselves  shows  that  it  may  sometimes  be  outweighed 
by  a  stronger.  Less  than  two  years  after  the  despatch  quoted 
above  had  been  written  President  Lincoln  established  the 
largest  and  most  efficacious  commercial  blockade  recorded  in 
history.  While  the  South  had  a  vast  seaboard  and  numerous 
ports,  its  territory  touched  but  one  neutral  state,  and  that 
was  poor  and  undeveloped.  Little  trade  could  come  across 
1  Wharton,  International  Law  of  the  United  States,  §  361. 


682  BLOCKADE 

the  Mexican  border ;  and  when  the  fleets  of  the  North  were 
able  to  blockade  effect!  vely  the  entire  coast  of  the  Confederacy, 
few  supplies  from  abroad  could  enter  the  country  and  few 
domestic  products  could  go  out  to  be  exchanged  for  munitions 
of  war.  This  isolation  contributed  powerfully  to  the  triumph 
of  the  Union  arms.  Little  blood  was  shed  to  bring  it  about, 
and  yet  it  was  more  effective  than  many  battles.  Island 
states  afford  more  striking  illustration  still.  If  it  were  pos- 
sible for  any  power  or  combination  of  powers  to  blockade  the 
coasts  of  Great  Britain,  she  would  be  reduced  to  sue  for  peace 
in  a  few  weeks  from  sheer  hunger.  On  the  other  hand  when 
the  country  whose  ports  are  blockaded  abuts  on  the  territory 
of  well-equipped  neutral  states,  it  would  be  able  to  obtain 
ample  supplies  by  land,  though  at  an  enhanced  cost.  If  every 
German  port  in  the  North  Sea  and  the  Baltic  were  closed, 
the  sixty-six  lines  of  railway  which  cross  her  frontiers  would 
pour  in  all  she  needed.1  Moreover  it  is  certain  that  with 
modern  means  of  destruction  no  strongly  held  naval  port 
could  be  hermetically  sealed,  though  the  supplies  that  reached 
it  might  be  scanty.  Nor  could  a  commercial  port  in  which 
there  were  well-handled  submarines  and  torpedo  craft  be 
closed,  except  by  the  use  of  a  very  large  force  distributed  in 
several  cordons.  While  blockade  may  still  be  made  into  a 
most  effective  weapon  in  certain  circumstances,  in  others  it 
will  be  of  little  use,  and  in  any  case  it  will  require,  in  order 
to  be  maintained  on  a  scale  sufficiently  large  to  affect  the 
issue  of  the  war,  a  force  vastly  greater  than  was  the  case  a 
century  ago.  No  power  could  attempt  a  commercial  block- 
ade of  any  magnitude  unless  it  possessed  a  vast  number  of 
war-ships ;  and  the  attempt  would  not  be  worth  making  un- 
less there  was  a  strong  probability  that  its  success  would 
reduce  the  foe  to  impotence  for  lack  of  the  supplies  it  cut  off. 
Yet  if  it  did  succeed  in  such  circumstances,  it  would  decide 
the  conflict  with  the  minimum  of  slaughter  and  destruction. 

1  Macdonell,  Some  Plain  Seasons  for  Immunity  from  Capture  of  Private 
Property  at  Sea,  p.  10. 


BLOCKADE  683 

It  would  be  a  mistake  to  prohibit  entirely  the  use  of  so 
humane  a  weapon,  especially  as  belligerents  may  be  trusted 
in  their  own  interests  not  to  annoy  neutrals  by  using  it 
unless  it  is  almost  certain  to  be  effective.  In  future  this 
condition  is  not  often  likely  to  be  fulfilled.  We  may  expect 
commercial  blockades  to  be  fewer  than  in  the  past;  but 
when  they  do  happen  they  will  bring  into  play  enormous 
forces  and  produce  far-reaching  effects. 


In  considering  the  modern  law  of  blockade  it  will  conduce 
to  clearness  if  we  arrange  it  under  heads.  Three  were 
given  by  Sir  William  Scott  in  the  case  of  the  The  heads  of  the 
Betsy,1  and  to  make  the  classification  more  lawofblockade- 
complete  we  will  add  a  fourth.  We  thus  obtain,  first,  the 
essentials  of  a  real  and  binding  blockade,  second,  the  proofs 
of  knowledge  of  its  existence  on  the  part  of  supposed  offend- 
ders,  third,  the  acts  which  amount  to  violation  of  blockade, 
and  fourth,  the  penalty  for  breach  of  blockade.  To  distin- 
guish these  heads  more  empathically  we  will  put  them  in 
the  form  of  questions,  the  answers  to  which  will  appear  as 
explanations  and  elucidations. 

§249 

Our  first  question,  then,  is, 
What  are  the  essentials  of  a  real  and  binding  blockade  f 

Our  historical  sketch  has  already  shown  us  that  what  are 
called  paper  blockades  are  no  longer  recognized.     We  need 
not  add  further  proof  of  a   proposition  which  what  constitutes 
has  been  admitted  on  all  sides  for  more  than  a  • 
hundred  years.     At  the  commencement  of  a  blockade,  neu- 
tral powers  are  not  exacting  in  their  requirements  as  to  the 
force  necessary  to  make  it  effective.     But  if,  after  a  reason- 

k  i  C.  Robinson,  Admiralty  Reports,  vol.  I,  p.  93. 


684  BLOCKADE 

able  time  has  elapsed,  their  warnings  remain  unheeded,  and 
the  number  of  vessels  stationed  off  the  blockaded  ports  is 
obviously  insufficient  to  close  them,  their  governments  will 
decline  to  recognize  the  validity  of  any  captures  of  their 
merchantmen  for  breach  of  the  so-called  blockade,  and  will 
demand  reparation  for  illegal  seizures  and  condemnations. 
The  occasional  ingress  or  egress  of  vessels  when  the  weather 
gives  them  special  advantages,  or  if  for  any  other  reason  they 
are  able  to  pass  through  the  lines-  of  closure,  does  not  render 
the  blockade  ineffective.  All  International  Law  requires  is 
that  the  attempt  to  run  in  or  out  shall  be  attended  by  mani- 
fest and  pressing  danger.  Moreover,  the  vessels  engaged  in 
maintaining  a  blockade  need  not  be  stationed  in  close  prox- 
imity to  the  port  they  close.  The  conformation  of  the  coast, 
the  nature  of  the  channels,  the  set  of  the  currents,  and  the 
neutral  or  belligerent  character  of  the  sovereignty  exercised 
over  the  adjoining  territory,  are  all  elements  in  determining 
the  position  of  the  blockaders.  In  the  Crimean  War  the 
port  of  Riga  was  blockaded  by  a  single  British  vessel,  sta- 
tioned a  hundred  and  twenty  miles  from  the  town  in  a  nar- 
row channel  which  formed  the  only  navigable  approach  to  the 
place.1  A  more  recent  instance  occurred  in  the  Hispano- 
American  War  of  1898,  when  the  United  States  Supreme  Court 
decided  in  the  case  of  the  Olinde  Rodriguez  2  that  one  cruiser 
was  enough  to  maintain  an  effective  blockade  of  the  port  of 
San  Juan  in  Porto  Rico,  though  it  released  the  captured  vessel 
on  the  ground  that  an  intent  to  enter  was  not  proved 
against  her.  It  also  laid  down  that  effectiveness  was  a 
matter  "  more  of  fact  than  of  law,"  thus  anticipating  the 
second  Article  of  the  Declaration  of  London,  which  declared 
that  "  the  question  whether  a  blockade  is  effective  is  a  ques- 
tion of  fact,"  and  left  it  for  the  courts  to  decide.  Another 
principle  bearing  directly  on  the  establishment  of  a  real  and 
binding  blockade  was  set  forth  by  the  eighteenth  article  of 

1  Hall,  International  Law,  5th  ed.,  p.  700. 

2  Scott,  Cases  on  International  Law,  pp.  835-844. 


BLOCKADE  685 

the  same  Declaration  in  the  words  "The  blockading  force 
must  not  bar  access  to  neutral  ports  or  coasts."      Like   the 
former  it  was  not  new  in  1909,  but  had  been  for  some  time 
generally  accepted  as  a  corollary  of  the  rule  that  blockades 
must  not  extend  beyond  the  coasts  belonging  to  an  enemy  or 
in  his  military  occupation.     In  the  American  Civil  War  the 
Federal  government  did  not  attempt  to  include  the  mouth  of 
the  Rio  Grande  in  its  blockade  of  the  Southern  coast,  because 
the  middle  of  the  stream  formed  the  boundary  between  the 
United  States  and  Mexico,  and  the  Mexican  port   of  Mata- 
moras  was  situated  within  the  estuary.1     Moreover  in  1870 
the  French  took  a  similar  course  with  regard  to  the  Ems,  and 
the  Hanoverian  ports  on  it  which  they  deemed  neutral  in  their 
struggle  with  Prussia.2     Further,  it  is  generally  recognized 
that  a  blockade  cannot  extend  beyond  the  area  covered  by 
the  operations  of  the  force  which  maintains  it.      This  princi- 
ple was  laid  down  in  the  case  of  the  Stert. 8    The  court  held 
that  goods  coming  from  a  blockaded  port  by  means  of  interior 
canal  navigation  which  was  perfectly  open  were  free  from 
hostile  seizure.     But  it  is  not  necessary  that  channels  should 
in  every  case  be  closed  by  ships,  though  a  maritime  blockade 
without  vessels  to  support  it  would  be  a  contradiction    in 
terms.       As  an  operation  supplementary  to  those  of  the  fleet, 
a  waterwaymay  be  closed  by  stones,  sunken  hulls,  torpedoes, 
or  other  obstructions.     When,  in  1861,  Earl  Russell  remon- 
strated on  behalf  of  the  British  Government  against  the  at- 
tempt made  by  the  Federal  forces  to  block  up  some  of  the 
approaches  to  Charleston  and  Savannah  by  sinking  vessels 
in  the  channels,  Mr.  Seward  replied  that  the   obstructions 
were  only  temporary  and  would  be  removed  at  the  termina- 
tion of  the  war.     He  also  disclaimed  any  intention  to  inflict 
permanent  injury  upon  "  the  commerce  of  nations  and  the 
free  intercourse  of  the  Southern  States  of  America  with  the 

1  Wharton,  International  Law  of  the  United  States,  §  359. 

2  Westlake,  International  Law,  part  II,  pp.  238,  239. 
8  C.  Robinson,  Admiralty  Reports,  vol.  IV,  p.  65, 


686  BLOCKADE 

civilized  world."1  But  any  form  of  closure  which  dispenses 
with  ships  altogether,  whether  it  be  lawful  or  unlawful,  can- 
not be  a  blockade.  In  dealing  with  the  instruments  and  meth- 
ods of  warfare  we  discussed  the  question  whether  automatic 
contact  mines  might  be  placed  secretly  off  an  enemy's  port, 
and  left  without  warning  to  destroy  the  first  ship  that  passed 
in  or  out.2  And  we  came  to  the  conclusion  that  such  a  pro- 
ceeding would  be  outrageous  in  itself,  and  in  its  consequences 
most  dangerous  to  neutrals.  We  can  only  add  here  that  it 
could  not  be  brought  under  the  law  of  blockade,  which  pre- 
supposes ships,  as  a  marriage  presupposes  a  bride  or  a  sale  a 
vendor.  The  only  position  it  could  occupy  would  be  that  of 
a  new  and  nameless  horror  which  ought  to  be  banned  forth- 
with by  the  emphatic  condemnation  of  the  civilized  world. 
There  is,  however,  one  form  of  closure  which  is  already 
forbidden  by  International  Law.  In  case  a  state  is  at- 
tempting to  put  down  a  domestic  revolt,  it  cannot  shut  up 
ports  in  possession  of  the  insurgents  by  merely  declaring 
them  no  longer  open  to  trade.  Great  Britain  maintained 
this  position  successfully  in  1861  against  both  New  Granada 
and  the  United  States,  and  the  United  States  themselves 
have  maintained  it  again  and  again  in  their  dealings  with 
South  and  Central  American  Republics.3  A  state  is  free  to 
exclude  both  foreign  and  domestic  vessels  from  any  harbor 
over  which  it  actually  exercises  the  powers  of  sovereignty. 
But  when  its  authority  is  at  an  end  owing  to  insurrection  or 
belligerent  occupation  by  a  hostile  force,  it  must  fall  back  on 
warlike  measures  ;  and  the  only  warlike  measure  which  will 
lawfully  close  a  port  against  neutral  commerce  is  an  effective 
blockade. 

The  Declaration  of  London  not  only  reenacted  the  rule  of 
the  Declaration  of  Paris  that  a  blockade  to  be  binding  must 
be  effective,4 but  added  the  further  condition  that  it  must  be  de- 

1  Glass,  Marine  International  Law,  pp.  107,  108.  2  See  §  203. 

8  Moore,  International  Law  Digest,  vol.  VII,  pp.  806-820. 
*  See  Article  2. 


BLOCKADE  687 

clared  and  notified.1  Great  Britain  had  always  recognized  the 
necessity  of  conveying  in  some  way  to  all  concerned  infor- 
mation of  the  existence  of  her  blockades,  and  had  in  most 
cases  made  diplomatic  notification  of  them.  But  she  held 
that  notoriety  was  equivalent  to  it,  and  regarded  an  effective 
blockade  without  notification  as  binding  on  neutrals,  pro- 
vided that  the  fact  of  its  existence  had  become  notorious 
in  commercial  circles.2  This  doctrine  of  notoriety  did  not 
find  much  favor  on  the  continent  of  Europe,  and  was  in 
truth  capable  of  undue  extension.  Communication  is  now 
so  easy  that  we  may  welcome  as  improvements  the  new 
conditions  of  effectiveness.  The  now  obligatory  declara- 
tion of  blockade  must  be  issued  either  by  a  belligerent 
government  or  by  a  commander  of  a  naval  force  acting 
on  behalf  of  his  state.  It  must  specify  (a)  the  date  when 
the  blockade  begins,  (£>)  the  geographical  limits  of  the  coast- 
line under  blockade,  and  (c)  the  period  within  which  neutral 
vessels  may  come  out.  This  last  item  is  important,  as  it 
turns  what  was  previously  custom  into  law.  Blockading 
powers  have  been  wont  to  allow  a  period  within  which 
vessels  found  within  a  port  at  the  commencement  of  the 
blockade  might  leave  it,  the  length  of  time  granted  varying 
with  circumstances  and  the  will  of  the  blockading  authori- 
ties. In  future  they  must  make  the  grant,  though  their 
option  with  regard  to  its  extent  is  not  taken  away.  The 
usual,  though  by  no  means  invariable,  British  practice  is  to 
give  fifteen  days,  which  was  the  time  allowed  when  England 
and  Germany  instituted  a  joint  blockade  of  Venezuelan  ports 
in  1902.  In  1898  the  United  States  allowed  neutral  vessels 
thirty  days  to  leave  the  blockaded  Cuban  ports.  Accuracy 
and  precision  in  declarations  of  blockade  are  of  immense 
importance.  Neutrals  have  every  right  to  know  the  exact 
extent  of  their  liabilities.  It  is,  therefore,  provided  that  if 

1  See  Articles  8-13. 

2  The  Neptunus,  C.  Kobinson,  Admiralty  Reports,  vol.  Ill,  p.  Ill;  The 
Franciska,  Spinks,  Admiralty  Reports,  p.  135. 


688  BLOCKADE 

the  particulars  as  to  date  of  commencement  and  geographical 
limits  do  not  tally  with  the  facts  of  the  blockade,  the  declaration 
is  null  and  void.  Consequently  the  blockade  is  inoperative, 
and  a  new  and  accurate  declaration  is  necessary.  Meanwhile 
captures  made  for  breach  of  blockade  are  illegal,  and  the 
vessels  must  be  released.  If  the  declaration  omits  to  grant 
days  of  grace  for  neutral  ships  within  the  port,  they  must  be 
allowed  to  pass  out  without  molestation ; 1  but  the  omission 
can  be  repaired  at  any  time  by  a  supplementary  document. 
Declarations  of  blockade  are  not  valid  unless  they  are  noti- 
fied. A  notification  of  blockade  2  must  be  made  by  the  govern- 
ment of  the  state  which  establishes  it  to  neutral  powers,  by 
means  of  a  communication  addressed  to  their  governments 
or  to  their  representatives  accredited  to  the  blockading  power. 
It  will  then  be  the  duty  of  the  neutral  authorities  to  warn 
their  merchants  and  shippers.  A  second  notification  must 
be  made  by  the  commander  of  the  blockading  force  to  the 
local  authorities  of  the  ports  and  places  under  blockade,  and 
these  latter  must  inform  the  foreign  consuls  within  the  block- 
aded district.  The  rules  as  to  declaration  and  notification 
apply  to  any  extension  or  restriction  of  the  limits  of  the  block- 
ade, and  also  to  cases  where  it  has  been  voluntarily  raised  or  is 
reestablished  after  having  been  brought  to  an  end  by  any 
means.  We  may  add  here  that  the  blockading  commander 
must  apply  his  blockade  impartially  to  the  ships  of  all  nations 
including  his  own.  If  he  shows  favor  to  those  of  any  par- 
ticular state,  neutrals  may  remonstrate,  and  in  the  last  resort 
decline  to  regard  the  blockade  as  valid.  He  may,  however, 
give  permission  to  a  neutral  war-ship  to  enter  and  leave  a 
blockaded  port,  but  is  not  obliged  to  do  so ;  and  in  circum- 
stances of  distress,  acknowledged  as  such  by  him,  he  is  bound 
to  allow  any  neutral  vessel  to  enter  and  leave,  provided  that 
she  does  not  discharge  or  ship  cargo  within  the  port.3 

A  blockade  ceases  to  exist  when  the  war  terminates,  or 
when  the  government  which  has  instituted  it  withdraws  the 

1  See  Article  16.  2  See  Article  11.  8  See  Articles  fr-7. 


BLOCKADE  689 

vessels  engaged  in  carrying  it  on,  or  when  it  ceases  to  be 
effective  so  completely  that  neutral  governments  decline  to 
recognize  it  any  longer.  It  is  also  terminated  if  the  block- 
ading squadron  is  defeated  and  driven  off  by  a  hostile  force, 
or  even  if  it  is  withdrawn  for  a  chase  or  an  action.  It  can,' 
however,  in  any  case  except  that  of  a  peace,  be  reestablished 
by  the  use  of  the  formalities  employed  at  its  commencement, 
provided  that  an  adequate  force  appears  to  renew  it.  But 
"  a  blockade  is  not  regarded  as  raised  if  the  blockading  force 
is  temporarily  withdrawn  on  account  of  stress  of  weather."1 
It  is  now  established  that  the  occupation  by  a  victorious 
belligerent  of  a  place  under  blockade  by  another  portion  of 
its  forces,  puts  an  immediate  end  to  the  operations  of  the 
blockading  ships,  and  renders  illegal  any  further  seizure  by 
them  of  neutral  vessels.  The  contrary  doctrine  was  laid 
down  by  the  Supreme  Court  of  the  United  States  in  the 
case  of  the  Circassian?  an  English  vessel  which  was  captured 
and  condemned  for  attempting  to  run  the  blockade  of  New 
Orleans  after  the  city  had  been  taken  by  the  Union  forces. 
But  the  Mixed  Commission,  appointed  under  Article  xii  of 
the  Treaty  of  Washington,  gave  compensation  for  wrongful 
seizure  to  the  owners  of  the  vessel.3  It  is  evident  that  a 
right  which  can  be  exercised  only  against  hostile  places 
comes  to  an  end  when  such  places  cease  to  be  hostile.  If  a 
belligerent  who  has  succeeded  in  occupying  a  port  belong- 
ing to  his  enemy,  wishes  to  shut  it  against  neutral  trade,  he 
must  do  so  by  municipal  closure,  not  by  international  block- 
ade. But  the  occupation  must  be  complete,  and  not  partial, 
as  was  shown  by  the  case  of  the  Adula,  a  British  vessel 
caught  in  an  attempt  to  run  into  the  Cuban  port  of  Guanta- 
namo  during  the  Hispano-American  War  of  1898.  The  Su- 
preme Court  condemned  her  for  the  reason,  among  others, 
that  when  the  capture  was  made  the  town  was  still  in  the 

1  See  Article  4. 

2  Wallace,  Reports  of  the  United  States  Supreme  Court,  vol.  II,  p.  136. 

3  Wharton,  International  Law  of  the  United  States,  §  369. 


690  BLOCKADE 

possession  of  the  Spanish  troops,  though  the  mouth  of  the 
harbor  was  held  by  the  American  fleet.1 

§  250 

The  next  head  to  demand  attention  is  connected  with  the 
mental  condition  of  the  supposed  culprit.  It  may  be  des- 
cussed  in  the  form  of  an  answer  to  the  question, 

How  is  knowledge  of  the  existence  of  a  blockade  brought  home  to 

an  offender  ? 

Something  more  than  the  establishment  of  an  effective  block- 
ade is  necessary  in  order  to  endow  the  blockaders  with  the  right 
to  capture  vessels  attempting  to  enter  or  leave  the  blockaded 
port.  It  is  necessary  that  the  existence  of  the  blockade 
should  be  known  to  those  who  are  accused  of 

The  knowledge  of  . 

the  party  supposed    breaking  it.     ouch  knowledge  is  actual  or  pre- 

to  have  offended.  ,.  T,    .  -,        ••  ..  11  ,. 

sumptive.  It  is  actual  when  it  can  be  brought 
home  by  clear  proof  to  the  shipmaster  concerned.  It  is  pre- 
sumptive when  the  surrounding  circumstances  are  proved  to 
be  such  that  it  would  have  been  impossible,  or  barely  possible, 
for  him  to  remain  ignorant.  France  and  the  group  of  powers 
which  adopted  her  views  used  to  hold  that  before  a  vessel 
could  be  condemned  for  breach  of  blockade  information 
must  be  given  to  her  directly  by  an  officer  of  one  of  the  war- 
ships of  the  blockading  force.  That  is  to  say,  they  insisted 
on  actual  knowledge  of  the  most  direct  kind  in  every  case. 
On  the  other  hand  Great  Britain  and  her  following  maintained 
that  knowledge  must  be  assumed  when  a  blockade  had  been 
diplomatically  notified,  or  when  it  had  become  notorious, 
though  they  allowed  the  shipmaster  to  prove  his  ignorance 
if  he  could.  Only  in  cases  when  it  was  clear  he  could  not 
know  did  they  give  him  the  benefit  of  an  individual  warning 
endorsed  on  his  ship's  papers.  In  the  Declaration  of  London 
the  French  school  gave  up  their  doctrine  of  the  necessity  of 

1  Scott,  Gases  on  International  Law,  pp.  826-836. 


BLOCKADE  691 

individual  warning  in  every  case,  a  concession  which  must  be 
set  against  the  surrender  by  the  British  school  of  their  claim 
to  effect  a  capture  at  any  point  in  the  outward  or  return 
voyage.  The  rules  finally  agreed  on  are  just  and  reasonable, 
and  will  afford  security  to  all  who  are  bona  fide  ignorant, 
without  impairing  the  efficiency  of  blockade.  Actual 
knowledge  subjects  the  vessel  to  capture  and  condemnation 
as  a  matter  of  course,  provided  that  the  blockade  is  effective 
and  some  act  of  violation  has  taken  place.  Knowledge  is 
presumed  if  the  vessel  left  a  neutral  port  after  the  notification 
of  the  blockade  to  the  territorial  power  and  the  lapse  of  suf- 
ficient time  for  the  local  authorities  to  publish  it.1  But  the 
presumption  is  not  absolute.  Proof  of  ignorance  may  be 
given,  and  the  prize  court  must  decide  whether  it  is  conclu- 
sive. But  if  on  the  approach  of  a  vessel  to  a  blockaded  port 
no  knowledge,  actual  or  presumptive,  can  be  shown  to  exist, 
she  is  entitled  to  special  notification  from  "  an  officer  of  one 
of  the  ships  of  the  blockading  force."  It  should  be  entered 
in  her  logbook,  and  should  state  the  day  and  hour  when  the 
notification  was  given,  and  the  geographical  position  of  the 
vessel  at  the  time.2  She  is  then  turned  back,  and  only  if  she 
attempts  a  second  time  to  pass  is  she  captured  for  breach  of 
blockade.  If  a  convoyed  fleet  of  neutral  merchantmen  ap- 
proaches in  ignorance,  the  commander  of  the  convoying  force 
is  warned,  and  it  is  his  duty  to  see  that  the  notification  is 
entered  in  the  logbook  of  each  of  the  ships  under  his  escort. 
The  system  thus  set  forth  was  elaborated  at  the  Naval  Con- 
ference of  1908-1909,  and  is  set  forth  in  the  Declaration  of 
London  of  1909,  which  is  likely  to  become  almost  immediately 
part  of  International  Law,  if  indeed  it  has  not  attained  that 
position  already.  It  contrasts  favorably  with  the  complica- 
tions of  the  old  British  system  and  the  lax  simplicity  of  the 
old  French  rule. 

1  Declaration  of  London,  Article  15.  a  Ibid.,  Article  16. 


692  BLOCKADE 

§  251 

We  must  now  attempt  an  answer  to  the  question 
What  are  the  acts  which  amount  to  violations  of  blockade  ? 

The  reply  will  differ  widely  from  that  which  would  have  been 
violation  of  given  a  few  years  ago.  Then  it  would  have  been 
necessary  to  explain  that  according  to  French 
ideas  the  offence  did  not  arise  till  an  attempt  was  being  made 
to  run  into  the  blockaded  port  or  approach  the  blockaded 
coast-line,  egress  being  on  the  same  legal  footing  as  ingress. 
Great  Britain  and  the  United  States  on  the  contrary  claimed 
and  exercised  a  right  to  capture  any  vessel  against  which 
could  be  proved  either  the  intention  to  break  a  blockade  or 
the  fact  of  having  broken  it,  provided  that  she  was  found  be- 
fore the  termination  of  the  return  voyage  at  any  point  where 
hostile  operations  could  be  carried  on  lawfully.  To  put  the 
matter  in  a  nutshell,  continental  opinion  made  violation  of 
blockade  equivalent  to  crossing  the  blockade  line  ;  British 
opinion  held  it  to  consist  in  an  attempt  to  reach  the  block- 
aded area.  The  weak  points  of  both  views  were  ably 
pointed  out  in  the  instructions  given  to  the  British  delega- 
tion at  the  Naval  Conference.1  They  were  also  informed 
that  no  case  could  be  found  of  a  vessel  having  been  con- 
demned by  a  British  court  for  breach  of  blockade  "  except 
when  actually  close  to,  or  directly  approaching,  the  block- 
aded port  or  coast."  It  appears,  therefore,  that  little  or 
nothing  was  surrendered  when  Great  Britain  agreed  at  the 
Conference  to  accommodate  her  principles  to  her  practice,  and 
accepted  the  rule  that  "  neutral  vessels  may  not  be  captured 
for  breach  of  blockade  except  within  the  zone  of  operations 
of  the  war-ships  detailed  to  render  the  blockade  effective."2 

It  was  well  understood  that  this  zone  or  area  of  operations 
might  cover  a  wide  extent  of  sea,  if  the  blockaded  port  was 

1  British  Parliamentary  Papers,  Miscellaneous,  No.  4  (1909),  pp.  25-27. 

2  Declaration  of  London,  Article  17. 


BLOCKADE  693 

skilfully  defended,  and  possessed  a  geographical  position 
which  rendered  the  task  of  closing  it  effectively  an  impossi- 
bility for  any  but  a  large  number  of  vessels.  On  the  other 
hand  it  might  be  quite  small  if  circumstances  favored  the 
blockaders.1  Washington,  for  instance,  might  be  blockaded 
by  a  few  war-ships  cruising  between  Cape  Charles  and  Cape 
Henry,  whereas  New  York  would  require  cordon  after  cordon 
of  vessels  stretching  far  out  into  the  Atlantic.  But  in  any 
case  the  condition  of  effectiveness  would  prevent  the  exten- 
sion of  the  area  of  blockade  into  distant,  seas.  It  must  vary 
with  circumstances,  and  it  may  in  exceptional  cases  spread 
several  hundreds  of  miles  from  the  centre  of  operations. 
No  attempt  to  close  to  trade  a  place  situated  on  an  open 
coast-line  could  be  really  effective  unless  one  of  the  lines  of 
blockade  had  to  be  crossed  by  daylight ;  and  as  a  swift 
blockade-runner  can  steam  about  three  hundred  miles 
during  a  long  winter's  night,  at  least  that  distance  should 
intervene  between  the  outer  arc  of  blockading  vessels  and 
the  next.  Add  to  this  that  the  line  nearest  to  the  shore  must 
keep,  sufficiently  far  from  land  to  avoid  attacks  from  torpedoes 
and  submarines,  and  we  see  what  a  stupendous  undertaking  a 
big  blockade  may  be  under  modern  conditions,  and  to  what  a 
distance  out  at  sea  its  outlying  scouts  may  be  sent.  The 
presence  in  the  port  of  a  well-found  and  well-handled 
squadron  would  make  distances  greater  and  increase  the 
numbers  of  the  blockading  vessels.  Certainly  the  rule  of 
the  Declaration .  of  London  does  not  confine  to  a  small  area 
the  exercise  of  the  belligerent  right  of  capture  at  sea  for 
breach  of  blockade,  though  it  does  save  neutral  powers  from 
the  risk  of  having  their  merchantmen  seized  on  one  side  of 
the  globe  when  they  are  making  for  a  blockaded  destination 
at  the  other. 

The  efficiency  of  blockade  as  a  weapon  in  the  hands  of  a 

1  General  Report  presented  to  the  Naval  Conference  on  behalf  of  Us  Draft- 
ing Committee,  see  British  Parliamentary  Papers,  Miscellaneous,  No.  4  (1909), 
pp.  41,  42. 


694  BLOCKADE 

power  which  has  command  of  the  sea  will  be  in  no  way  im- 
paired by  the  rule  we  have  discussed.  When  what  we  may 
term  the  neck  of  the  bottle  is  the  only  spot  that  is  watched, 
all  approaching  ships  will  be  liable  to  seizure.  In  other  cases 
the  wide-thrown  net  of  the  blockaders  will  enclose  a  multi- 
tude of  vessels.  And  it  must  be  remembered  that  any 
blockade-runner  that  has  tried  to  enter  the  closed  port  or  suc- 
ceeded in  leaving  it  can  be  pursued  by  a  unit  of  the  blockad- 
ing force,  and  may  be  captured  as  long  as  the  pursuit  continues. 
A  temporary  refuge  in  a  neutral  port  cannot  save  the  hunted 
vessel.  Her  pursuer  can  wait  outside  till  she  leaves  it  and 
then  renew  the  chase.  Moreover  a  chase  may  be  begun  by 
one  of  the  blockaders  and  continued  by  another,  and  yet  an- 
other, as  long  as  all  of  them  belong  to  the  force  engaged  in 
carrying  on  the  blockade.  Only  when  the  pursuit  is  aban- 
doned, or  the  blockade  raised  during  its  continuance,  is  the 
right  of  capture  lost.1  But  "whatever  may  be  the  ulterior 
destination  of  a  vessel,  or  of  her  cargo,  she  cannot  be  captured 
for  breach  of  blockade,  if  at  the  moment  she  is  on  her  way  to 
a  non-blockaded  port.2  "  If,  however,  the  innocent  destina- 
tion is  a  mere  blind,  and  the  ship  does  not  intend  to  visit  it, 
but  is  bound  directly  and  immediately  for  a  blockaded  port, 
she  may  be  seized,  and  will  assuredly  be  condemned.  The 
rule  is  directed  against  the  application  to  blockade  of  the 
doctrine  of  continuous  voyages,3  under  which  in  its  modern 
form  the  ulterior  destination  of  the  cargo  was  considered, 
and  if  it  could  be  shown  that,  after  entering  an  open  neutral 
port,  it  or  any  considerable  part  of  it  was  to  be  sent  on  to  a 
blockaded  port  in  either  the  same  vessel  or  another,  ship  or 
cargo,  or  both,  were  condemned.  Under  the  Declaration  of 
London,  the  blockading  war-ships  must  wait  till  the  second 
stage  of  the  transit  is  proceeding,  and  the  vessel  is  heading 
for  the  blockaded  port  and  has  entered  their  area  of  operations 
before  they  can  effect  a  capture.  They  must  not  subject  the 

1  Declaration  of  London,  Article  20.  •  See  §  267. 

2  Ibid.,  Article  19. 


BLOCKADE  695 

neutral  port  to  what  has  been  well  described  as  a  blockade 
by  interpretation. 

Ingress  and  egress  are  alike  violations  of  blockade,  unless 
the  transit  takes  place  during  days  of  grace.  In  the  case  of 
egress,  as  we  have  already  seen,  a  grant  of  a  longer  or 
shorter  period  in  favor  of  ships  found  in  the  port  at  the 
commencement  of  the  blockade  is  now  compulsory.  Whether 
the  new  rule  covers  cargo  also  is  doubtful.  Practice  has 
varied  from  exit  in  ballast  to  exit  fully  laden,  contraband 
goods  alone  being  forbidden.  In  the  Cuban  blockade  of 
1898  the  American  courts  construed  the  grant  of  thirty  days' 
grace  as  a  permission  to  come  out  with  cargo  laden  within 
that  period,  and  President  McKinley  confirmed  this  interpre- 
tation in  his  Proclamation  of  June,  27,  1898,  extending  the 
original  blockade  to  other  Spanish  ports.1  The  Declaration 
of  London  imposes  on  belligerents  no  obligation  to  permit  in- 
gress for  a  limited  period  after  the  commencement  of  a  block- 
ade ;  but  they  have  sometimes  granted  it  as  an  indulgence, 
and  will  in  all  probability  continue  to  do  so  in  hard  cases. 
When  Great  Britain  and  Germany  established  in  December, 
1902,  a  joint  blockade  of  part  of  the  Venezuelan  coast-line, 
they  allowed  ingress  to  neutral  vessels  which  had  sailed  for 
the  closed  ports  before  the  notification  of  the  blockade,  du- 
ring a  time  varying  with  the  distance  to  be  traversed  and  the 
character  of  the  vessel  as  a  steamer  or  a  sailing  ship.  Loiter- 
ing outside  a  blockaded  port  in  order  to  take  advantage  of  an 
opportunity  to  slip  in,  or  to  receive  cargo  from  small  craft 
which  have  penetrated  the  blockading  line  outwards,  or  to 
transship  cargo  to  them  that  they  may  carry  it  inwards,  has 
been  hitherto  regarded  as  a  violation  of  blockade  by  many 
powers,  and  there  seems  no  reason  why  it  should  not  be 
looked  at  in  the  same  way  now,  provided,  of  course,  that  the 
acts  take  place  within  the  zone  of  operations  of  the  blockad- 
ing force. 

1  Proclamations  and  Decrees  during  the  War  with  Spain,  pp.  76,  78. 


696  BLOCKADE 

§252 
The  last  of  our  four  questions  asks 

What  is  the  penalty  for  breach  of  blockade? 

The  Declaration  of  London  gives  the  answer  in  the  following 
words.  "A  Vessel  found  guilty  of  breach  of  blockade  is 
liable  to  condemnation.  The  cargo  is  also  condemned,  unless 
it  is  proved  that  at  the  time  of  the  shipment  of  the  goods  the 
shipper  neither  knew  nor  could  have  known  of  the  intention 
to  break  the  blockade."  1  It  is  impossible  to  add  much  to 
that  terse  and  comprehensive  statement.  It  may,  however, 
be  advisable  to  bring  out  that  the  penalty  falls  first  and  fore- 
most on  the  ship,  and  only  incidentally  on  the  cargo.  If  the 
ship  and  cargo  are  owned  by  the  same  person  or  group  of 
persons,  both  are  condemned.  If  the  ship  and  cargo  are 
owned  by  different  persons  or  groups  of  persons,  again  both 
are  condemned,  unless  the  owner  or  owners  of  the  cargo  can 
show  that  they  did  not  possess,  and  could  not  fairly  be  ex- 
pected to  possess,  any  knowledge  that  the  port  of  destination 
was  under  blockade.  Their  knowledge  is  always  presumed, 
and  the  burden  of  proof  of  ignorance  falls  on  them.  If  the 
master  of  the  vessel  starts  for  an  open  port  and  deviates  to  a 
blockaded  port,  he  is  held  to  do  so  in  the  interest  of  the  ship, 
since  he  is  the  agent  of  its  owner.  But  he  is  not  the  agent 
of  the  owner  of  the  cargo.  If,  therefore,  the  two  are  differ- 
ent persons  or  different  groups  of  persons,  and  the  latter  can 
show  that  at  the  time  of  the  commencement  of  the  voyage  he 
was  ignorant  of  the  existence  of  the  blockade,  his  goods  will 
probably  be  released.2  This  was  admitted  in  1804,  and  the 
courts  of  the  twentieth  century  are  not  likely  to  be  more 
severe  than  their  predecessors  of  the  great  Napoleonic  struggle.8 

1  See  Art.  21.      *  The  Adonis,  Robinson,  Admiralty  Reports,  vol.  V,  p.  257. 

3  For  the  text  of  the  Declaration  of  London,  see  Higgins,  The  Hague  Peace 
Conferences,  pp.  540-566 ;  Whittuck,  International  Documents,  Appendix, 
pp.  254-274 ;  Supplement  to  the  American  Journal  of  International  Law, 
vol.  Ill,  pp.  186-220.  For  a  discussion  of  that  part  which  deals  with  blockade, 
see  Dupuis,  Le  Droit  de  la  Guerre  Maritime,  ch.  VI. 


CHAPTER  VI 

TRADE   IN   CONTRABAND   OF   WAR 
§  253 

EVERY  belligerent  may  capture  goods  of  direct  and  im- 
mediate use  in  war,  if  he  is  able  to  intercept  them  on  their 
passage  to  his  enemy.  In  the  nature  of  things  The  nature  of  con- 
he  can  do  this  at  sea  only,  since  it  is  unlawful  to  traband  of  war- 
perform  acts  of  war  on  the  territory  of  a  neutral  power.  If  a 
case  should  occur  of  the  transport  of  arms  and  munitions  of 
war  to  an  enemy  over  land  unappropriated  by  any  civilized 
state,  they  might  no  doubt  be  seized  in  transit  by  the  forces 
of  the  other  side.  But  such  circumstances  are  so  improbable 
as  to  be  practically  impossible.  We  must  look  on  the  capture 
of  contraband  as  an  operation  of  maritime  warfare,  and  it  is 
always  discussed  as  such.  The  law  with  regard  to  it  was  a 
gradual  growth.  We  find  the  germ  of  it  in  declarations  and 
treaties  of  the  sixteenth  century,  when  belligerents  some- 
times regarded  all  trade  between  neutrals  and  the  enemy  as 
an  offence,  and  a  claim  to  seize  certain  articles  only  ap- 
peared as  a  mitigation  of  so  extreme  a  severity.  From  the 
beginning  there  were  two  currents  of  opinion,  one  in  favor 
of  the  prevention  of  neutral  trade  in  weapons  and  munitions 
of  war,  and  the  other  in  favor  of  a  prohibition  of  all  supplies 
which  might  be  useful  in  any  way  for  warlike  purposes.1 
Curiously  enough,  in  this  case  as  in  that  of  blockade,  two 
powers  gradually  became  prominent  in  working  out  and  putting 
into  practice  the  opposing  views,  and  they  were  the  same  two 
which  had  occupied  similar  positions  in  the  moulding  of  the 
law  of  blockade.  We  may  carry  the  parallel  a  step  farther 
and  add  that  with  regard  to  this  matter,  too,  a  reconciliation 

i  Westlake,  International  Law,  part  II,  pp.  241-243. 
697 


698  TRADE   IN   CONTRABAND   OF   WAR 

has  been  effected.  The  signatures  of  England  and  France 
stand  at  the  foot  of  the  Declaration  of  London,  which  contains 
a  truly  international  law  of  contraband  drawn  up  largely 
through  the  efforts  of  the  distinguished  plenipotentiaries  of  the 
two  states.  For  a  clear,  learned,  and  somewhat  detailed  state- 
ment of  the  differences  and  the  final  agreement  between 
them,  we  must  refer  our  readers  to  the  account  given  by  M. 
Charles  Dupuis  in  his  valuable  works,  La  Gruerre  Maritime 
et  les  Doctrines  Anglaises  and  Le  Droit  de  la  Gruerre  Maritime.1 
We  may  say  at  once,  in  order  to  make  what  follows  intelligi- 
ble, that  from  the  beginning  England  stood  for  the  doctrine 
that  other  objects  than  arms  and  munitions  of  war  could  be 
treated  as  contraband  when  surrounding  circumstances  showed 
that  they  were  destined  for  the  warlike  uses  of  the  enemy, 
while  France  upheld  the  view  that  nothing  was  contraband 
but  what  had  no  use  except  for  war.  The  remarks  of  Grotius 
on  the  subject 2  show  that  at  the  beginning  of  the  seventeenth 
century  the  law  of  contraband  was  in  its  infancy  and  had 
hardly  begun  to  be  distinguished  from  a  law  of  blockade. 
During  the  latter  half  of  the  seventeenth  century  we  find 
important  treaties  which  accentuate  the  differences  we  have 
remarked  on.  In  the  eighteenth  century  the  decisions  of 
prize  courts  reduced  the  opposing  views  to  system,  and  gave 
to  them  legal  shape.  The  nineteenth  century  was  a  century 
of  definition  and  discussion,  and  the  twentieth  has  begun  as 
a  century  of  reconciliation. 

§254 

The  rudimentary  nature  of  the  notions  as  to  contraband 
found  in  the  early  documents  is  well  illustrated  by  a  clause 
Neutral  states  are  in  the  Treaty  of  Whitehall  of  1661  between 

not  bound  to  stop      „  -  _          , 

contraband  trade  England  and  Sweden.  After  stipulating  for  a 
subjects'"^  list  of  contraband  which  contains  many  articles 

other  than  arms  and  munitions  of  war,  it  goes  on  to  pledge 

1  See  chapter  vii.  2  De  Jure  Belli  ac  Pacts,  bk.  Ill,  ch.  i,  6. 


TRADE   IK   CONTRABAND   OF   WAR  699 

each  of  the  contracting  parties  not  to  permit  its  subjects  to 
give  aid  to  the  enemies  of  the  other  by  lending  or  selling 
ships  or  being  useful  in  any  way  connected  with  the  war.1 
This  is  diametrically  opposed  to  modern  ideas.  It  has  been 
held  for  at  least  a  hundred  and  fifty  years  that  neutral  mer- 
chants may  trade  in  arms,  ammunition,  and  stores  of  all 
kinds,  in  time  of  war  as  well  as  in  time  of  peace.  There  is 
thus  a  conflict  between  the  right  of  the  belligerent  state  to 
capture  such  goods  and  the  right  of  the  neutral  individual 
to  trade  in  them.  Modern  International  Law  makes  a  com- 
promise between  them  by  allowing  the  subjects  of  neutral 
states  to  carry  contraband  to  either  belligerent,  but  insisting 
that  they  do  so  at  their  own  risk.  Their  government  is  not 
bound  to  restrain  them  from  trading  in  the  forbidden  goods, 
but  neither  has  it  any  right  to  interfere  on  their  behalf  if  the 
articles  are  captured  by  one  belligerent  on  their  way  to  the 
other.  Yet  whenever  a  trade  in  contraband  reaches  consid- 
erable dimensions,  the  state  whose  adversary  is  supplied  by 
means  of  it  is  apt  to  complain.  But  it  invariably  receives  in 
reply  a  reminder  that  the  practice  of  nations  imposes  on  neu- 
tral governments  no  obligation  to  stop  such  commerce.  They 
are  bound  to  prevent  the  departure  of  warlike  expeditions  from 
their  shores,  and  the  supply  of  fighting  gear  to  belligerent 
vessels  in  their  ports.  When  this  is  done,  the  most  that  can 
be  expected  of  them  in  the  matter  of  ordinary  business  trans- 
actions is  that  they  shall  warn  their  subjects  of  the  risks  run 
by  carriers  of  contraband  merchandise,  and  give  notice  that 
those  who  incur  them  will  not  be  protected  by  the  force 
or  influence  of  the  state.  Several  important  international 
controversies  have  been  conducted  on  these  lines.  Thus, 
when  in  1793  Great  Britain  complained  of  the  sale  of  arras 
and  accoutrements  to  an  agent  of  the  French  government  in 
the  United  States,  Jefferson,  who  was  the  Secretary  of  State 
in  Washington's  cabinet,  replied  that  American  citizens  "  have 
always  been  free  to  make,  vend  and  export  arms.  It  is  the 
1  Westlake,  International  Law,  part  II,  p.  244. 


700  TRADE   IN   CONTRABAND   OF    WAR 

constant  occupation  and  livelihood  of  some  of  them.  To 
suppress  their  callings,  the  only  means,  perhaps,  of  their  sub- 
sistence, because  a  war  exists  in  foreign  and  distant  countries, 
in  which  we  have  no  concern,  would  scarcely  be  expected. 
It  would  be  hard  in  principle  and  impossible  in  practice.  The 
law  of  nations,  therefore,  respecting  the  rights  of  those  at 
peace,  does  not  require  from  them  such  an  internal  derange- 
ment in  their  occupations.  It  is  satisfied  with  the  external 
penalty  pronounced  in  the  President's  proclamation,  that  of 
confiscation  of  such  portion  of  these  arms  as  shall  fall  into 
the  hands  of  the  belligerent  powers  on  their  way  to  the  ports 
of  their  enemies.  To  this  penalty  our  citizens  are  warned 
that  they  will  be  abandoned."1  These  words  were  quoted 
on  behalf  of  Great  Britain  when  the  positions  of  the  two 
powers  were  reversed,  and  the  United  States,  in  the  case 
submitted  by  them  to  the  Geneva  Arbitrators  in  1872, 
ranked  among  their  causes  of  complaint  against  the  British 
Government  its  refusal  to  put  a  stop  to  the  trade  in  contra- 
band of  war  carried  on  between  England  and  the  ports  of 
the  Southern  Confederacy.2  On  this  occasion,  as  in  1793, 
the  answer  of  the  neutral  was  deemed  conclusive.  The  Brit- 
ish Government  did  not  press  its  complaint  against  the  ad- 
ministration of  Washington,  and  the  Board  which  arbitrated 
on  the  Alabama  Claims  gave  no  damages  to  the  United  States 
in  respect  of  the  purchase  of  arms  in  England  by  Confederate 
agents. 

The  conduct  of  states  in  the  matter  of  contraband  has  been 
full  of  inconsistencies.  Prussia,  for  instance,  whose  merchants 
conducted  an  enormous  trade  in  contraband  goods  across  her 
eastern  frontiers  during  the  Crimean  War,  denounced  in 
vigorous  language  the  conduct  of  the  British  authorities  in 
permitting  English  firms  to  sell  arms  and  ammunition  to 
France  in  1870. 8  The  United  States  Government  sent 

1  Wharton,  International  Law  of  the  United  States,  §  391. 

2  American  Case,  part  IV ;  British  Counter  Case,  part  IV. 

8  British  Parliamentary  Papers,  Franco- German  War,  No.  3  (1870),  pp. 
72,  73,  7&-77,  97. 


TRADE   IN   CONTRABAND   OP   WAR  701 

agents  to  England  for  the  purchase  of  munitions  of  all  kinds 
during  the  first  two  years  of  the  struggle  with  the  revolted 
South.  France  in  1795  complained  loudly  of  the  capture  by 
British  cruisers  of  neutral  ships  laden  with  supplies  of  food 
for  her  suffering  people ;  but  in  1885  she  claimed  the  right 
to  seize  and  confiscate  cargoes  of  rice  carried  by  neutrals 
to  certain  ports  of  China.  It  was  then  the  turn  of  Great 
Britain  to  resist  the  attempt.  She  gave  notice  that  she 
would  not  recognize  the  validity  of  any  condemnations  of 
her  merchantmen  engaged  in  the  rice  trade,  unless  they  were 
carrying  the  grain  to  Chinese  camps  or  places  of  naval  or  mili- 
tary equipment  ;J  and  fortunately  the  war  came  to  an  end 
before  a  case  arose.  It  would  be  easy  to  multiply  instances. 
But  amid  all  the  contradictions  of  international  recrimination 
one  fact  stands  out  clear  and  indubitable.  No  powerful 
neutral  state  has  ever  interfered  to  stop  a  trade  in  arms  and 
ammunition  carried  on  by  its  subjects  with  agents  of  a 
belligerent  government.  It  is  impossible,  therefore,  to  avoid 
the  conclusion  that  the  only  legal  restraint  on  such  a  trade  is 
the  liability  of  contraband  to  capture,  even  under  a  neutral 
flag.  So  clear  is  this  that  nearly  every  writer  of  repute  em- 
bodies it  in  his  account  of  the  law  of  contraband.  The  little 
band  who  hold  that  neutral  powers  are  bound  to  prohibit  the 
sale  of  arms  and  other  instruments  of  warfare  within  their 
territory  to  belligerent  agents,  base  their  arguments  upon 
what  they  deem  considerations  of  justice  and  equity,  which 
in  their  judgment  override  the  practice  of  states.2  Others, 
who  do  not  feel  at  liberty  to  construct  their  systems  without 
some  reference  to  the  arrangements  of  international  society, 
but  nevertheless  desire  to  place  as  many  restrictions  as  pos- 
sible upon  trade  in  contraband,  have  drawn  a  distinction 
between  large  and  small  commercial  transactions.3  The 

1  Documents  Diplomatiques,  Affaires  de  Chine  (1885),  pp.  29-32  ;  British 
Parliamentary  Papers,  France,  No.  1  (1885),  pp.  14-21. 

2  Hautefeuille,    Droits    des  Nations   Neutres,  vol.  II,  tit.  VIII,  sec.  iii ; 
Phillimore,  Commentaries,  vol.  Ill,  §  CCXXX. 

8  E.g.  Bluntachli,  Droit  International  Codifle,  §  70. 


702  TRADE   IN  CONTRABAND   OF  WAR 

latter  they  regard  as  a  continuation  of  such  ordinary  trade 
as  may  have  existed  before  the  war,  whereas  the  former 
are  called  into  existence  by  the  war  and  cannot  be  consid- 
ered as  in  any  sense  a  prolongation  of  the  previous  opera- 
tions of  neutral  merchants. 

If  these  statements  are  to  be  regarded  as  an  expression  of 
existing  law,  it  is  sufficient  to  say  that  the  rule  they  advocate 
has  never  been  adopted.  If,  on  the  other  hand,  they  are 
held  to  set  forth  what  the  law  ought  to  be,  we  may  remark 
that  the  difficulty  of  drawing  a  line  between  a  small  trade 
and  a  large  one  is  so  great  as  to  amount  to  impossibility. 
Moreover,  it  is  by  no  means  certain  that  international  trade 
in  arms  on  a  large  scale  is  confined  to  times  of  war.  A  firm 
like  Krupp  of  Essen  makes  artillery  for  half  the  armies  of 
the  civilized  world  during  periods  of  profound  peace.  And 
lastly,  it  may  be  argued  that  the  burden  placed  by  the  pro- 
posed rule  upon  neutral  governments  would  be  too  great  for 
them  to  bear.1  The  stoppage  of  large  shipments  of  arms 
for  belligerent  purposes  from  the  ports  of  a  great  commercial 
country  would  require  for  its  effective  enforcement  an  army 
of  spies  and  informers.  And  when  a  state  had  dislocated 
its  commerce  and  roused  the  anger  of  its  trading  classes,  it 
might  possibly  find  itself  arraigned  before  an  international 
tribunal  and  cast  in  damages  because  a  few  cargoes  had 
slipped  through  the  cordon  it  maintained  against  its  own 
subjects.  The  growth  of  a  moral  sentiment  against  making 
money  out  of  the  miseries  of  warfare  may  in  time  check  the 
eagerness  of  neutral  merchants  to  engage  in  contraband 
trade.  Meanwhile  belligerents  must  trust  to  the  efficiency 
of  their  own  measures  of  police  on  the  high  seas  to  keep 
cargoes  of  warlike  stores  out  of  the  ports  of  their  enemies. 

§  255 

Since  the'law  of  nations  gives  to  states  at  war  the  right 
of  stopping  neutral  trade  in  contraband  goods  by  the  use  of 
1  Westlake,  Article  in  Revue  de  Droit  International,  II,  614-635. 


TRADE  IN   CONTRABAND  OF   WAR  703 

armed  force  on  the  high  seas,  it  is  obvious  that  some  general 
agreement  as  to  the  articles  which  come  under  the  description 
of  contraband  is  necessary  in  order  to  avoid  what  articles  are 
constant  friction.  But  till  lately  no  agree-  «50ntrabandofww- 
ment  existed  except  with  regard  to  a  very  small  portion 
of  the  large  field  to  be  covered.  Arms  and  munitions 
of  war  were  recognized  as  being  contraband,  and  there 
unanimity  ended.  Grotius  divided  commodities  into  three 
classes  :  things  useful  for  war  only,  things  useless  for  war- 
like purposes,  and  things  useful  in  war  and  peace  indiffer- 
ently. The  first  might  always  be  captured  when  on  their 
way  to  an  enemy,  the  second  never,  and  with  regard  to  the 
third,  res  ancipitis  usus,  the  circumstances  of  the  contest 
were  to  be  considered.1  This  classification  is  valuable,  and 
contains,  in  its  reference  to  surrounding  circumstances  as 
the  decisive  factors  in  dealing  with  the  third  class,  the  germ 
of  the  English  doctrine  of  conditional  or  occasional  contra- 
band. We  shall  discuss  this  almost  immediately  ;  but 
meanwhile  it  will  be  advisable  to  show  what  confusion 
existed  down  to  1909,  the  date  of  the  Declaration  of  London,  as 
to  the  contraband  or  non-contraband  character  of  goods  other 
than  weapons  and  ammunition.  Whichever  way  we  turn  we 
meet  nothing  but  disagreement  and  inconsistency.  Publicist 
differs  from  publicist  and  state  from  state.  Even  the  same 
state  champions  one  policy  at  one  time  and  another  at 
another,  and  places  different  lists  of  contraband  goods  in 
different  treaties  negotiated  during  the  same  period.  A  full 
account  of  these  diversities  is  given  by  Hall,2  and  to  it 
the  student  is  referred  if  he  desires  to  make  himself 
acquainted  with  their  multitudinous  details.  As  an  exam- 
ple of  what  took  place,  we  may  cite  the  action  of  Great 
Britain  and  the  United  States  with  regard  to  two  out  of  the 
many  classes  of  disputed  goods,  naval  stores,  and  horses. 

1  De  Jure  Belli  ac  Pads,  bk.  Ill,  ch.  i,  5. 

2  International  Law,  5th  ed.,  pp.  640-664. 


704  TKADE   IN   CONTRABAND   OP  WAR 

The  treaty  of  1794  between  these  powers  included  the  former 
in  its  list  of  contraband  articles.  Yet  in  the  next  year  the 
United  States  expressly  excluded  them  in  its  treaty  with 
Spain,  following  thereby  its  own  precedents  in  the  French 
treaty  of  1778,  the  Dutch  treaty  of  1782,  and  the  Swedish 
treaty  of  1783. *  Horses  were  not  included  in  the  list  of 
the  treaty  with  England  of  1794  ;  but  they  are  expressly 
mentioned  in  the  treaty  of  1782  with  the  United  Netherlands, 
though  by  its  twenty-fourth  article  naval  stores  were  ruled 
out  in  the  most  emphatic  terms.  The  French  treaty  of  1778 
included  them.  The  French  treaty  of  1800  excluded  them. 
They  are  mentioned  as  contraband  in  the  treaty  with  Swe- 
den of  1783  arid  the  treaty  with  Spain  of  1795.  They  are 
not  mentioned  in  the  Prussian  treaties  of  1785  and  1799. 2 
During  the  nineteenth  century  a  list  of  contraband  goods 
was  inserted  in  many  of  the  treaties  of  the  United  States, 
the  general  tendency  being  toward  the  inclusion  of  horses 
and  the  exclusion  of  naval  stores.  Great  Britain  on  the 
other  hand  preferred  to  keep  herself  free  from  special  agree- 
ments on  the  subject.  Since  the  close  of  the  eighteenth 
century  she  has  entered  into  stipulations  with  regard  to  it 
very  sparingly.  But  small  in  number  as  were  her  treaty- 
lists  of  contraband,  they  were  not  consistent  with  each  other. 
Both  horses  and  naval  stores,  for  instance,  were  declared  to 
be  subject  to  confiscation  in  her  treaty  of  1810  with  Portugal, 
but  seventeen  years  after  she  agreed  with  Brazil  to  omit  the 
former  while  retaining  the  latter.3  In  more  recent  years  the 
chief  battles  took  place  over  provisions  and  coals.  Russia 
excluded  foodstuffs  from  her  list  of  contraband  published  in 
1900.  With  regard  to  coal  she  followed  France  in  maintain- 
ing the  extreme  view  that  it  could  in  no  case  be  regarded  as 
contraband.  Yet  soon  after  the  outbreak  of  her  war  with 

1  Treaties  of  the  United  States,  pp.  304,  389,  756,  1011,  1046. 

2  Ibid.,  pp.  303,  389,  756,  903,  911,  1011,  1044. 

8  G.  F.  de  Martens,  Nouveau  Recueil,  Supplement,  vol.  VII,  p.  211,  and 
vol.  XI,  pp.  485,  486. 


TRADE  IN   CONTRABAND   OF  WAB  705 

Japan  in  1904  she  declared  both  provisions  and  fuel  to  be 
unconditionally  contraband,1  though  afterwards,  under  strong 
pressure  from  Great  Britain  and  the  United  States,  she 
modified  her  position  with  regard  to  articles  of  food. 

It  is  clear  that  no  authoritative  list  of  contraband  articles 
can  be  compiled  from  diplomatic  documents.  An  examina- 
tion of  the  works  of  publicists  leads  to  a  corresponding  con- 
clusion. But  amid  conflicting  views  it  is  possible  to  discern 
two  main  tendencies.  The  first  favored  a  long  list  of  contra- 
band goods  and  divided  them  into  the  two  classes  of  those 
which  are  always  contraband  and  those  which  are  contraband 
or  not  according  to  circumstances.  It  may,  as  we  have  al- 
ready seen,  be  called  English,  since  its  chief  defenders  are  to 
be  found  among  the  jurists  and  statesmen  of  Great  Britain. 
The  second  deemed  comparatively  few  articles  to  be  contra- 
band, but  placed  them  all  in  the  first  class,  holding  that  the 
same  thing  could  not  be  contraband  in  one  set  of  conditions 
and  innocent  in  another.  As  its  chief  supporter  was  France, 
though  she  was  followed  by  other  continental  powers,  it  may 
be  called  French.  In  this  matter,  as  in  several  others  con- 
nected with  maritime  law,  America  occupies  an  intermediate 
position.  In  her  treaties  and  her  state  papers  she  generally 
followed  European,  and  especially  French,  models  ;  while  her 
courts  and  her  legal  luminaries  as  a  rule  supported  English 
views. 

In  its  more  fully  developed  form  the  English  doctrine 
divided  contraband  articles  into  goods  absolutely  contraband 
and  goods  conditionally  contraband.  Among  the  former  it 
reckoned  not  only  arms  of  all  kinds  and  the  machinery  for 
manufacturing  them,  ammunition  and  the  materials  of  which 
it  is  made,  gun-cotton  and  clothing  for  soldiers,  but  also 
military  and  naval  stores,  including  in  the  latter  marine 
engines  and  their  component  parts,  such  as  cylinders,  shafts, 
boilers,  and  fire-bars.  These  things  were  declared  to  be  con- 
traband always  and  in  every  case.  They  were  condemned 
1  Lawrence,  War  and  Neutrality  in  the  Far  East,  pp.  159,  166. 


706  TRADE   IN   CONTRABAND   OF   WAR 

on  mere  inspection,  provided,  of  course,  that  they  were  bound 
to  an  enemy  destination.  They  carried  their  guilt  on  their 
face,  and  were  invariably  liable  to  seizure  and  confiscation. 
But  in  addition  to  these  there  were  other  large  classes  of 
goods  which  varied  in  character.  They  could  not  be  con- 
demned merely  for  being  what  they  were.  It  was  necessary 
to  know  more  about  them  than  their  nature  and  description. 
All  manner  of  collateral  circumstances  must  be  taken  into 
account.  Whatever  raised  a  presumption  that  they  would 
be  used  for  warlike  purposes  told  against  them.  Whatever 
tended  to  show  that  they  would  be  consumed  by  peaceful  non- 
combatants  told  in  their  favor.  It  is  for  this  reason  that 
they  were  called  goods  conditionally  contraband.  Among 
them  were  provisions,  money,  coals,  horses,  and  in  recent  times 
materials  for  the  construction  of  railways  and  telegraphs.1 
It  is  obvious  that  the  noxious  or  innocuous  character  of  such 
things  as  these  depended  on  the  use  to  which  they  were 
applied.  Great  Britain  contended  that  they  might  lawfully 
suffer  capture  and  condemnation  when  surrounding  circum- 
stances make  it  reasonably  clear  that  they  would  be  used  for 
purposes  of  warfare.  The  immediate  destination  of  the 
goods  was  held  to  be  the  best,  though  not  the  only,  test  of 
their  final  use.  In  the  case  of  the  Yonge  Margaretha?  Lord 
Stowell  condemned  a  cargo  of  cheeses  bound  for  Brest,  a  port 
of  naval  equipment,  the  cheeses  being  such  as  were  used  in 
the  French  navy.  Should  the  voyage  be  intended  to  termi- 
nate at  the  enemy's  fleet,  or  at  a  place  where  a  portion  of  his 
army  was  encamped,  there  could  be  no  doubt  that  condemna- 
tion would  follow  capture.  The  views  thus  expressed  were 
spoken  of  collectively  as  the  doctrine  of  conditional  contra- 
band. 

This  doctrine  was  strongly  opposed  by  most  of  the  publi- 
cists of  the  European  continent.  One  of  the  most  recent  of 
them,  M.  Richard  Kleen,  in  a  work  published  in  1893,  ex- 

1  Holland,  Manual  of  Naval  Prize  Law,  1888,  p.  20. 
a  C.  Robinson,  Admiralty  Reports,  vol.  I,  p.  194. 


TRADE  IN   CONTRABAND  OF  WAR  707 

amined  the  English  decisions  and  pronounced  against  their 
validity.1  He  held  nothing  to  be  contraband  but  objects  ex- 
pressly made  for  war  and  fitted  for  immediate  employment 
in  warlike  operations.  These  objects  in  their  completed 
form,  or  in  parts  which  can  be  fitted  together  without  a  further 
process  of  alteration  or  manufacture,  were  liable  to  capture 
if  found  on  their  journey  to  an  enemy  destination.8  But  he 
added  that  articles  which  do  not  come  under  these  categories 
can  never  under  any  circumstances  become  lawful  prize  as 
contraband  of  war.  He  combated  with  much  vigor  the  views 
set  forth  in  the  Manual  of  Naval  Prize  Law  drawn  up  in  1888by 
Professor  Holland  for  the  British  Admiralty,  and  declined  to 
accept  proof  of  the  likelihood  of  hostile  use  as  a  sufficient  reason 
for  the  seizure  of  goods  capable  in  their  own  nature  of  innocent 
employment.  Other  continental  writers,  while  questioning 
the  validity  of  the  doctrine  of  occasional  contraband,  make 
admissions  which  involved  its  principle.  Bluntschli,  for 
instance,  declared  that  such  things  as  engines,  horses,  and 
coal  might  be  accounted  contraband  if  it  could  be  shown 
that  they  were  destined  for  a  warlike  use.8  Heffter  ranked 
them  among  prohibited  goods  when  their  transport  to  a 
belligerent  by  a  neutral  afforded  assistance  manifestly  hostile 
in  its  nature.*  Ortolan  maintained  that  res  ancipitis  usus 
might  be  treated  as  contraband  in  very  exceptional  cases  ; 
but  he  excepted  from  this  exception  provisions  and  other 
objects  of  first  necessity.6  Kliiber  admitted  the  existence  of 
doubtful  cases,  which  must  be  ruled  by  surrounding  circum- 
stances.6 As  late  as  1896  the  Institute  of  International  Law 
first  condemned  unequivocally  the  theory  of  conditional  or 
relative  contraband,  and  then  declared  that  a  belligerent  might 
seize  on  payment  of  an  equitable  indemnity  "  those  articles 

1  Contrebande  de  Guerre,  pp.  30-37. 

2  Ibid.,  pp.  19-30,  32. 

8  Droit  International  Codifie,  §  805. 

*  Droit  International,  §  160. 

6  Diplomatie  de  la  Mer,  vol.  II,  p.  179. 

6  Droit  des  Gens  Moderne  de  r Europe,  §  288. 


708  TRADE  IN   CONTRABAND   OF   WAR 

which,  being  on  their  way  to  a  port  of  his  adversary,  could 
serve  equally  for  warlike  and  peaceful  purposes."1 

These  opinions  conceded  all  that  is  essential  in  the  British 
position.  In  order  to  establish  the  doctrine  of  conditional 
contraband  it  is  not  necessary  to  show  that  every  rule  of  the 
English  prize  courts  is  correct.  Harsh  decisions  may  have 
been  given  from  time  to  time.  The  conclusion  that  the  cap- 
tured goods  were  really  destined  for  warlike  use  may  have 
been  reached  in  many  cases  on  the  strength  of  presumptions 
insufficient  to  bear  the  weight  of  the  superstructure  reared 
upon  them.  All  this  may  be  admitted  ;  and  yet  the  fact 
remains  that,  by  consent  so  general  as  to  be  almost  universal, 
there  are  circumstances  which  will  justify  the  seizure  and 
condemnation  as  contraband  of  goods  which  are  ordinarily 
innocent.  Provisions  are  an  excellent  example.  As  a  rule 
they  are  not  captured  ;  but  if  they  are  stopped  on  their  way 
to  an  enemy's  force,  or  a  besieged  place,  they  are  taken  with- 
out hesitation  or  scruple.  The  vast  majority  of  publicists 
recognize  the  legality  of  such  seizure,  though  some  would 
impose  a  duty  of  compensation  on  the  captor  state.  They 
thus  admit  in  effect  the  proposition  that  what  is  not  contra- 
band at  one  time  and  under  one  set  of  conditions  is  contra- 
band at  another  time  and  under  another  set  of  conditions. 
When  this  is  allowed,  the  doctrine  of  conditional  contraband 
is  granted,  and  nothing  remains  but  to  settle  its  application. 
But  it  is  just  at  this  point  that  difficulties  that  till  lately 
proved  insuperable  arose.  Great  Britain  placed  many  articles 
ancipitis  usus  in  her  list  of  goods  absolutely  contraband. 
Naval  stores  supply  a  case  in  point.  Masts  and  spars,  boiler- 
plates and  screw-propellers,  are  needed  by  peaceful  merchant- 
men as  well  as  by  armed  cruisers.  Yet  the  Admiralty 
manual  classed  them  with  arms  and  ammunition,  and  ordered 
their  capture  if  bound  to  a  hostile  port,2  a  rule  which  naturally 
enough  found  no  favor  in  the  eyes  of  continental  publicists. 

1  Annuaire  de  Vlnstitut  de  Draft  International,  1896,  p.  231. 

2  Holland,  Manual  of  Naval  Prize  Law,  p.  19. 


TRADE   IN    CONTRABAND    OF    WAR  709 

While  such  differences  as  these  existed  they  were  a  danger 
to  the  peace  of  the  civilized  world.  By  the  end  of  the  nine- 
teenth century  it  was  felt  that  polemical  discussion  could  do 
no  further  good.  In  the  course  of  it  a  possibility  of  approxi- 
mation had  been  revealed.  It  seemed  evident  that  interna- 
tional agreement  might  be  reached  by  way  of  a  frank  acceptance 
of  the  British  and  American  doctrine  of  conditional  contra- 
band, in  return  for  the  transfer  to  the  conditionally  contra- 
band class  of  many  articles  now  deemed  absolutely  contraband 
by  Great  Britain.  If  these  mutual  concessions  were  once 
made,  no  insuperable  difficulty  would  be  presented  by  the 
further  task  of  deciding  what  circumstances  connected  with 
the  destination  of  the  vessel  and  the  special  needs  of  the 
enemy  should  be  deemed  sufficient  to  support  the  presumption 
that  the  goods  were  destined  for  an  essentially  warlike  use, 
and  were  therefore  fit  subjects  of  belligerent  capture.  Thus 
two  lists  would  come  into  existence,  not  at  the  dictation  of 
belligerents  anxious  to  make  the  utmost  use  of  their  naval 
power,  or  neutrals  jealous  of  any  interference  with  a  lucrative 
commerce,  but  as  the  result  of  full  discussion  carried  on  with 
the  view  of  arriving  at  conclusions  just  to  all.  The  first  list 
would  consist  of  those  things  which  were  contraband  in  their 
own  nature,  and  therefore  liable  to  seizure  and  condemnation 
if  found  on  their  voyage  to  an  enemy  destination.  The 
second  list  would  include  all  other  articles  capable  of  military 
use  ;  but  they  would  not  be  deemed  contraband  of  war  unless 
it  was  clear  they  were  about  to  be  employed  for  warlike 
purposes,  and  were  not  destined  to  supply  the  needs  of  a 
peaceful  population. 

Acting  on  these  views  the  Hague  Conference  of  1907  made 
a  persistent  attempt  to  throw  the  law  of  contraband  into  the 
form  of  rules  which  would  command  general  assent.  It  suc- 
ceeded to  the  extent  of  drawing  up  a  list  of  articles  absolutely 
contraband ;  *  but  it  failed  to  agree  on  a  corresponding  list 

1  Deuxieme  Conference  Internationale  de  la  Paix,  Acts  et  Documents,  vol. 
in,  p.  1114. 


710  TRADE  IN   CONTRABAND   OF   WAR 

of  articles  conditionally  contraband,  and  was  obliged  to  give 
up  its  task.  Its  labors  were,  however,  of  the  greatest  service 
to  the  Naval  Conference  of  1908-1909,  which  adopted  with- 
out alteration  its  predecessor's  list  of  absolute  contraband, 
and  added  to  it  two  others,  the  first  containing  goods  condi- 
tionally contraband  and  the  second  goods  which  may  not  be 
declared  contraband  at  all.1  These  are  so  important  that  \ve 
will  give  them  at  full  length.  They  are  not  perfect ;  but 
they  represent  a  pacific  termination  of  age-long  disputes  and 
afford  a  firm  base  for  future  advances. 
The  articles  absolutely  contraband  are: 

(1)  Arms  of  all  kinds,  including  arms  for  sporting  purposes, 

and  their  distinctive  component  parts. 

(2)  Projectiles,  charges,  and  cartridges  of  all  kinds,  and  their 

distinctive  component  parts. 

(3)  Powder  and  explosives  specially  prepared  for  use  in  war. 

(4)  Gun-mountings,  limber  boxes,  limbers,  military  waggons, 

field  forges,  and  their  distinctive  component  parts. 

(5)  Clothing  and  equipment  of  a  distinctively  military  char- 

acter. 

(6)  All  kinds  of  harness  of  a  distinctively  military  character. 

(7)  Saddle,  draught,  and  pack  animals  suitable  for  use  in 

war. 

(8)  Articles  of  camp  equipment,  and  their  distinctive  com- 

ponent parts. 

(9)  Armor  plates. 

(10)  War-ships,  including  boats,  and  their  distinctive  com- 

ponent parts  of  such  a  nature  that  they  can  only  be 
used  on  a  vessel  of  war. 

(11)  Implements  and  apparatus  designed  exclusively  for  the 

manufacture  of  munitions  of  war,  for  the  manufac- 
ture or  repair  of  arms,  or  war  material  for  use  on 
land  or  sea. 
The  articles  conditionally  contraband  are: 

1  Declaration  of  London,  Articles  22,  24,  28. 


TRADE   IN   CONTRABAND   OF   WAR  711 

(1)  Foodstuffs. 

(2)  Forage  and  grain,  suitable  for  feeding  animals. 

(3)  Clothing,  fabrics  for  clothing,  and  boots  and  shoes,  suit- 

able for  use  in  war. 

(4)  Gold  and  silver  in  coin  or  bullion  ;  paper  money. 

(5)  Vehicles  of  all  kinds  available  for  use  in  war,  and  their 

component  parts. 

(6)  Vessels,  craft,  and  boats  of  all  kinds;    floating  docks, 

parts  of  docks,  and  their  component  parts. 

(7)  Railway  material,  both  fixed  and  rolling-stock,  and  ma- 

terial for  telegraphs,  wireless  telegraphs,  and  tele- 
phones. 

(8)  Balloons  and  flying  machines  and  their  distinctive  compo- 

nent parts,  together  with  accessories  and  articles  recog- 
nizable as  intended  for  use  in  connection  with  balloons 
and  flying  machines. 

(9)  Fuel;  lubricants. 

(10)  Powder  and  explosives  not  specially  prepared  for  use 

in  war. 

(11)  Barbed  wire  and  implements  for  fixing  and  cutting  the 

same. 

(12)  Horseshoes  and  shoeing  materials. 

(13)  Harness  and  saddlery. 

(14)  Field  glasses,  telescopes,  chronometers,  and  all  kinds  of 

nautical  instruments. 

The  articles  which  may  not  be  declared  contraband  at  all 
are: 

(1)  Raw  cotton,  wool,  silk,  jute,  flax,  hemp,  and  other  raw 

materials  of  the  textile  industries,  and  yarns  of  the 
same. 

(2)  Oil  seeds,  and  nuts  ;  copra. 

(3)  Rubber,  resins,  gums,  and  lacs ;  hops. 

(4)  Raw  hides  and  horns,  bones  and  ivory. 

(5)  Natural  and  artificial  manures,  including  nitrates  and 

phosphates  for  agricultural  purposes. 

(6)  Metallic  ores. 


712  TRADE  IK   CONTRABAND   OF   WAR 

(7)  Earths,  clays,  lime,  chalk,  stone  including  marble,  bricks, 

slates,  and  tiles. 

(8)  Chinaware  and  glass. 

(9)  Paper  and  paper-making  materials. 

(10)  Soap,  paint,  and  colors,  including  articles  exclusively 

used  in  their  manufacture,  and  varnish. 

(11)  Bleaching  powder,  soda  ash,  caustic    soda,  salt   cake, 

ammonia,  sulphate  of  ammonia,  and  sulphate  of  cop- 
per. 

(12)  Agricultural,  mining,  textile,  and  printing  machinery. 

(13)  Precious  and  semi-precious  stones,  pearls,  mother-of- 

pearl,  and  coral. 

(14)  Clocks  and  watches,  other  than  chronometers. 

(15)  Fashion  and  fancy  goods. 

(16)  Feathers  of  all  kinds,  hairs,  and  bristles. 

(17)  Articles  of  household  furniture  and  decoration ;  office 

furniture  and  requisites. 

§  256 

The  lists  just  given  are  brought  into  operation  among  the 
states  which  accept  the  Declaration  of  London  by  the  mere 
Alterations  and  fac^  of  war  without  any  publication  on  the  part 

conditions,  includ-  *  ^    J 

ing  destination.  of  the  belligerents.  But  any  signatory  power 
is  at  liberty  to  declare  that  it  will  add  to  the  list  of  absolute 
contraband  an  article  or  articles  exclusively  used  for  war,  or 
to  the  list  of  conditional  contraband  an  article  or  articles 
susceptible  of  use  in  war  as  well  as  for  the  purposes  of  peace. 
It  must  not,  however,  add  to  the  list  of  articles  which  may 
not  be  declared  contraband,  though  it  does  not  follow  from 
the  existence  of  such  a  list  that  any  goods  which  do  not 
appear  in  it  may  be  captured  on  their  way  to  an  enemy.  If 
additions  are  made  to  the  first  two  lists  in  the  way  we  have 
described,  other  states  are  not  bound  to  accept  them,  and 
any  question  of  their  validity  which  might  arise  would  be 
referred  for  settlement  to  diplomacy  or  to  the  International 


TRADE   IN   CONTRABAND   OF   WAR  713 

Prize  Court.  The  power  to  add  to  lists  carries  with  it  the 
power  to  take  from  them  or  amend  them.  A  state  might 
declare  that  in  the  event  of  war  it  would  not  exercise  its 
right  to  capture  such  and  such  goods  in  either  of  the  lists, 
or  it  might  pledge  itself  to  treat  as  conditional  contraband 
something  which  appeared  in  the  list  of  absolute  contra- 
band. Neutrals  could  have  no  objection  to  receive  more 
lenient  treatment  than  was  secured  to  them  by  strict  law, 
and  therefore  the  kind  of  alteration  we  are  now  contem- 
plating is  not  likely  to  be  challenged.  All  declarations  of 
change,  whether  made  in  time  of  peace,  or  at  the  begin- 
ning of  a  war  or  during  its  continuance,  as  would  usually 
be  the  case,  must  be  notified  to  other  powers,  in  order  to 
give  them  an  opportunity  of  raising  objections  if  they  wish 
and  publishing  the  information  for  the  benefit  of  their  mer- 
chants and  shippers.1  The  whole  system  is  an  attempt  to 
find  means  of  revising  the  lists  as  the  progress  of  invention 
arms  mankind  with  new  weapons  and  renders  old  ones  ob- 
solete. Balloons,  for  instance,  were  scientific  toys  a  few  years 
ago,  and  flying  machines  did  not  exist.  Now  both  are  part 
of  the  equipment  of  every  well-supplied  army.  Bucklers 
and  coats  of  mail  are  among  the  articles  enumerated  as 
contraband  in  the  treaty  of  1778  between  France  and  the 
United  States.2  Yet  no  one  would  dream  of  putting  them 
into  a  similar  treaty  to-day.  But  though  revision  is  necessary 
from  time  to  time,  it  may  be  a  question  whether  the  Declara- 
tion of  London  has  adopted  the  best  method  of  effecting  it. 
The  plan  propounded  renders  possible  a  revival  of  the  old 
controversies  between  belligerents  and  neutrals  as  to  what  is 
contraband.  The  long  and  toilsome  process  of  elaborating  the 
lists  and  securing  for  them  the  assent  of  the  leading  powers 
was  undertaken  to  prevent  such  dangerous  occurrences  in 
future.  Might  not  a  better  solution  of  the  problem  be  found 
by  entrusting  to  a  Committee  appointed  at  each  Hague  Con- 

1  Declaration  of  London,  Articles  23,  25,  26. 

2  Treaties  of  the  United  States,  p.  303. 


714  TRADE  IN   CONTRABAND  OF  WAR 

ference  the  duty  of  revision,  subject  to  the  confirmation  of 
the  new  lists  by  the  full  Conference?  The  Committee  should 
also  have  power  to  deal  provisionally  with  any  proposal  for 
change  brought  before  it  by  at  least  three  states  in  the  inter- 
val between  any  Conference  and  its  successor.  Among  the  ar- 
ticles that  may  never  be  captured  as  contraband  are  two  kinds 
of  goods  which  do  not  appear  in  the  third  or  free  list.  They 
are  "  articles  serving  exclusively  to  aid  the  sick  and  wounded," 
and  "articles  intended  for  the  use  of  the  vessel  in  which  they 
are  found,  as  well  as  those  intended  for  the  use  of  her  crew 
and  passengers  during  the  voyage."  The  first  are  exempt 
from  capture  on  grounds  of  humanity ;  but  in  the  case  of 
urgent  military  necessity  they  may  be  requisitioned  subject  to 
payment  of  compensation,  if  they  are  on  their  way  to  an  enemy 
destination.  The  second  are  exempt  on  grounds  of  conven- 
ience. It  would  not  be  right  to  deprive  a  vessel  of  the  means 
of  signalling  or  defending  herself  against  pirates,  nor  would 
any  warlike  purposes  be  served  by  taking  away  from  her  crew 
and  passengers  overcoats  and  telescopes  they  had  brought 
for  use  on  the  voyage.1 

The  contents  of  an  arsenal  found  on  their  way  to  neutral 
magazines  would  no  more  be  contraband  than  cargoes  of 
Paris  fashions  or  children's  toys.  In  order  that  goods  of  a 
nature  to  be  useful  for  warlike  purposes  may  be  captured  it 
is  necessary  that  they  should  have  an  enemy  destination. 
In  the  case  of  absolute  contraband  any  kind  of  enemy  des- 
tination is  sufficient.  It  may  be  the  territory  of  a  hostile 
power,  or  territory  under  its  military  occupation  for  the 
time  being,  or  it  may  be  its  armed  forces  on  land  and  sea. 
Proof  of  such  destination  is  held  to  be  complete,  both  when 
the  ship's  papers  show  that  the  goods  are  to  be  discharged  in 
an  enemy's  port,  or  delivered  to  his  armies  or  war-ships,  and 
when  the  goods  are  documented  for  a  neutral  port,  but  the 
vessel  is  to  call  at  enemy  ports  only,  or  to  touch  at  an  enemy 
port,  or  meet  the  armed  forces  of  the  enemy  before  reaching 
1  Declaration  of  London,  Article  29. 


TRADE  IN   CONTRABAND   OF   WAR  715 

the  neutral  port.  Her  papers  are  conclusive  proof  of  her 
destination,  unless  it  is  clear  from  her  position  and  other 
indications  that  their  statements  are  not  to  be  trusted.1 
In  the  case  of  conditional  contraband  any  kind  of  enemy  des- 
tination is  not  sufficient.  It  must  be  the  armed  forces  of  the 
enemy  state,  or  one  of  its  government  departments,  unless  in 
the  latter  case  it  is  clear  that  the  goods  cannot  be  used  for 
the  purposes  of  the  war  in  progress.  Reasonable  certainty 
of  this  will  relieve  all  the  goods  in  the  second  list  from 
liability  to  capture  except  those  mentioned  under  its  fourth 
head,  which  are  in  effect  money  or  bullion.  The  required 
destination  is  presumed  to  exist,  if  the  goods,  being  them- 
selves in  the  list  of  conditional  contraband,  are  consigned  to 
a  fortified  place  held  by  the  enemy,  or  to  one  of  his  bases  of 
operations,  or  to  enemy  authorities,  or  to  contractors  es- 
tablished in  an  enemy  country  who,  as  a  matter  of  common 
knowledge,  supply  the  enemy  government  with  articles  of  the 
kind  in  question.  A  mere  destination  to  enemy  territory  is 
not  enough.  The  spot  has  to  be  connected  with  the  war  in 
some  particular  way.  And  if  the  article  whose  contraband 
character  is  sought  to  be  proved  is  a  merchant  vessel,  des- 
tination to  a  fortified  place  or  a  naval  base  will  not  give  rise 
to  a  presumption  against  her,  but  destination  for  the  use  of 
the  armed  forces  or  government  departments  of  the  enemy 
must  be  directly  proved.  A  presumption  of  innocence 
arises  when  none  of  the  above  grounds  for  presuming  guilt . 
are  shown  to  exist,  but  either  presumption  may  be  rebutted 
by  evidence  to  tKe  contrary.  There  is  no  presumption  con- 
clusive and  incapable  of  rebuttal,  as  in  the  case  of  absolute 
contraband.  When  a  ship  is  found  to  be  carrying  condi- 
tional contraband,  herj>apers  are  conclusive  proof  "both  as 
to  the  voyage  in  which  she  is  engaged,  and  as  to  the  port  of 
discharge  of  the  goods,"  unless  she  is  found  clearly  out  of 
the  course  indicated  by  them,  and  is  unable  to  give  satisfac- 
tory reasons  for  the  deviation.  Thus  the  testimony  of  the 
«  l  Declaration  of  London,  Articles  30-32. 


716  TRADE  IN   CONTRABAND   OP   WAR 

papers  completes  the  chain  of  evidence.  The  use  to  which 
the  goods  are  to  be  put  fixes  their  guilt  or  innocence ;  the 
destination  is  proof  of  the  use,  and  the  papers  are  proof  of 
the  destination.1 

Whether  a  vessel  is  carrying  absolute  or  conditional  con- 
traband, she  "  may  be  captured  on  the  high  seas  or  in  the 
territorial  waters  of  the  belligerents  throughout  the  whole 
of  her  voyage,  even  if  she  is  to  touch  at  a  port  of  call  before 
reaching  the  hostile  destination."  But  she  is  free  from 
liability  to  capture  on  the  return  voyage,  provided  it  is 
innocent.  When  the  unlawful  carriage  of  contraband  goods 
comes  to  an  end,  the  offence  comes  to  an  end  also.2 

§257 

The  Declaration  of  London  lays  down  with  regard  to 
absolute  contraband  that  if  it  is  shown  to  be  destined  to 
The  doctrine  of  enemy  territory  or  enemy  armed  forces  "  it  is 

continuous  voy-         .  .    •        «       i  i  •  ni  i 

ages.  immaterial  whether  the  carriage  of  the  goods  is 

direct,  or  entails  transshipment  or  a  subsequent  transport  by 
land."3  With  regard  to  conditional  contraband  the  Dec- 
laration provides  that  it  shall  be  free  from  capture  "  except 
when  found  on  board  a  vessel  bound  for  territory  belonging 
to  or  occupied  by  the  enemy,  or  for  the  armed  forces  of  the 
enemy,  and  when  it  is  not  to  be  discharged  at  an  intervening 
neutral  port."  4  In  the  first  case  the  destination  of  the  goods 
is  made  the  controlling  factor,  and  in  the  second  the  destina- 
tion of  the  vessel.  But  to  the  latter  an  exception  is  made 
when  "the  enemy  country  has  no  seaboard."  Then  condi- 
tional contraband  can  be  captured,  in  spite  of  the  neutral 
destination  of  the  vessel  which  carries  it,  if  it  is  shown  to  be 
on  its  way  to  the  armed  forces  or  government  departments 
of  the  enemy  state.5  These  three  pa'ssages,  taken  together, 
form  the  grave  of  a  great  controversy.  In  them  it  received 
the  usual  sepulture,  a  great  compromise.  It  will  be  neces- 

1  Declaration  of  London,  Articles  33-35.  a/6id.,  Articles  37,  38. 

8  See  Article  30.  *  See  Article  35.  6  See  Article  36. 


TRADE  IN  CONTRABAND  OF  WAR  717 

sary  to  give  a  brief  historical  account  of  it,  in  order  that  the 
present  position  of  the  matter  may  be  clearly  understood. 

In  1793  Great  Britain  rightly  or  wrongly  forbade  neutrals 
to  trade  between  the  colonial  and  home  ports  of  her  enemies, 
when  such  commerce  was  thrown  open  to  them  as  a  war 
measure  after  having  been  closed  in  time  of  peace.  Ameri- 
can'vessels  entered  the  French  and  Spanish  colonial  trade, 
and  endeavored  to  evade  the  British  prohibition  by  putting 
into  a  port  of  the  United  States  en  route,  and  then  carrying 
their  cargoes  on  to  the  forbidden  destination.  Some  of  these 
ships  were  captured,  and  the  capture  generally  took  place  on 
the  second  stage  of  their  journey.  Sir  William  Scott  laid 
down  that  the  two  voyages  made  in  law  but  one  voyage,  and 
condemned  the  vessel  even  when  the  goods  had  been  passed 
through  the  customs  house  in  the  American  port.1  This  was 
called  the  doctrine  of  continuous  voyages.  It  survived  the 
temporary  emergency  that  gave  it  birth,  because  of  its  obvi- 
ous applicability  to  other  and  more  enduring  situations. 
About  the  middle  of  the  nineteenth  century  it  began  to  be 
applied  to  contraband,  and  in  a  few  cases  connected  with  the 
American  civil  war  to  blockade.  And  in  the  course  of  its 
application  to  new  circumstances  almost  imperceptibly  a 
change  came  over  the  doctrine  itself.  In  its  second  form  it 
dealt  with  goods  rather  than  ships,  and  asserted  that  when 
the  cargo  was  to  be  carried  on,  as  part  of  the  same  commer- 
cial transaction,  from  a  neutral  destination  perfectly  innocent 
in  itself  to  an  enemy's  storehouses  or  a  blockaded  port,  then 
it  was  liable  to  capture  on  the  first  stage  of  its  journey  as 
well  as  the  second,  irrespective  of  the  fact  that  the  second 
stage  was  to  be  performed  in  a  different  ship  or  by  land  car- 
riage. Outside  the  United  States  the  transformed  doctrine 
found  little  favor  in  its  application  to  blockade,  and  we  saw 
in  the  previous  chapter  that  the  Declaration  of  London  ban- 

1  Baty,  International  Laic  in  South  Africa,  pp.  4-10,  15-23.  For  a  review 
of  cases  by  the  judge,  see  The  Maria  (1805},  C.  Robinson,  Admiralty  Reports, 
vol.  V,  p.  365. 


718  TRADE   IN   CONTRABAND   OF   WAR 

ished  it  from  the  law  relating  to  that  operation.  But  a  large 
body  of  opinion  favored  its  use  in  cases  of  contraband,  and 
in  1896  the  Institute  of  International  Law  introduced  it  under 
carefully  worded  conditions  into  a  set  of  rules  on  the  subject.1 
It  was  applied  by  several  prize  courts,  and  found  a  place  in 
the  naval  regulations  and  manuals  of  various  nations,  notably 
in  those  issued  by  Russia  and  Japan  for  the  war  of  1904- 
1905.  But  in  the  case  of  the  Bundesrath2  Germany  strongly 
opposed  it,  and  contended  that  the  neutral  destination  of  the 
vessel  was  conclusive  in  her  favor,  since  there  could  be  no 
question  of  contraband  in  a  trade  between  neutral  ports.  In 
the  Hague  Conference  of  1907  she  maintained  her  position, 
not  without  support  in  other  quarters,  while  Great  Britain's 
drastic  proposition  to  get  rid  of  difficulties  by  abolishing  the 
law  of  contraband  was  not  backed  by  voting  power  strong 
enough  to  carry  it,3  and  has  since  been  dropped  altogether. 
At  last  in  1909  the  Naval  Conference  of  London  settled  the 
question  by  a  compromise.  The  doctrine  is  not  to  apply  to 
conditional  contraband  except  in  the  extraordinary  case,  which 
can  occur  very  seldom,  of  a  belligerent  which  has  no  coast- 
line. Obviously  it  would  be  unfair  to  allow  it  to  make  a 
neutral  port  more  useful  to  it  in  its  war  than  a  port  of  its 
own  could  be.  A  belligerent  port  can  be  closed  by  blockade, 
but  a  neutral  port  cannot.  Warlike  supplies  could  be  sent 
to  it  with  absolute  impunity  in  neutral  vessels,  and  could 
then  be  forwarded  in  safety  by  land  carriage  to  the  camps 
and  arsenals  of  the  coastless  belligerent.  The  only  way  to 
prevent  this  is  to  allow  a  maritime  enemy  to  intercept  the 
warlike  stores  at  sea,  and  this  is  what  the  Declaration  of  Lon- 
don does,  with  due  precautions  for  proof  of  the  hostile  desti- 
nation of  the  goods  before  they  can  be  condemned.  On  the 
other  hand,  in  cases  of  absolute  contraband  the  final  destina- 
tion of  the  goods  is  to  be  the  decisive  element.  It  would  be 
absurd  to  suppose  that  a  powerful  fleet  would  rock  idly  on 

1  Annuaire,  1896,  p.  231.  a  See  §  186. 

8  Lawrence,  International  Problem  and  Hague  Conferences,  pp.  186-189. 


TRADE   IN   CONTRABAND  OF   WAR  719 

the  waves  off  a  great  neutral  port,  while  cargo  after  cargo  of 
arms  and  munitions  of  war  were  poured  in  under  its  eyes, 
and  taken  from  the  quays  by  a  short  railway  journey  to  the 
arsenals  of  a  foe  whose  navy  it  had  swept  from  the  seas,  and 
whose  ports  it  was  keeping  under  strict  blockade.  Justice 
demands  that  no  such  perversion  of  neutrality  should  be  al- 
lowed. Humanity  cries  out  against  the  prolongation  of  the 
war  which  would  certainly  result  from  it.  And  prudence 
deprecates  the  putting  of  such  a  strain  on  human  nature  as 
would  be  involved  in  the  attempt  to  enforce  it.  Few  com- 
promises are  popular  at  the  time,  but  some  work  admirably 
in  practice.  Let  us  hope  that  this  will  be  the  fate  of  the 
particular  compromise  we  have  just  considered. 

§  258 

There  is  such  a  vast  amount  of  loose  thinking  and  writing 
on  the  subject  of  contraband  that  it  will  be  advisable  to  set 
forth  here  in  close  juxtaposition  the  essentials  The  essentials  of 
which  must  coexist  before  an  offence  is  commit-  ^atte'^of  con- 


ted,  though  they  have  all  been  mentioned  inci- 
dentally  in  the  former  part  of  this  chapter.  We  must  note 
in  the  first  place  that  it  is  transport,  and  not  bargain  and 
sale,  which  the  law  of  contraband  aims  at.  Neutral  traders 
are  free  to  sell  arms  and  other  contraband  goods  within  the 
neutral  territory  to  agents  of  the  warring  powers.  It  is  only 
when  they  export  such  articles  to  one  belligerent  that  the 
right  of  capture  is  acquired  by  his  enemy.  In  other  words 
the  commerce  passif  of  recent  continental  writers  is  allowed, 
but  the  commerce  actif  is  left  to  the  mercy  of  the  belligerent 
who  suffers  from  it.  This  is  an  old  and  well-established  rule. 
Bynkershoek  lays  it  down  in  the  terse  sentence,  Non  recte 
vehamus,  sine  fraude  tamen  vendimus.1  It  is  the  doctrine  of 
the  prize  courts  of  all  civilized  peoples,  and  has  never  been 
controverted  except  by  those  theorists  who  would  lay  on  neu- 
tral states  the  unendurable  burden  of  preventing  all  traffic 

1  Quaestiones  Juris  Publici,  bk.  I,  ch.  22. 


720  TRADE   IN   CONTRABAND   OP   WAR 

in  munitions  of  war  between  their  subjects  and  the  bellig- 
erent powers. 

Secondly,  a  belligerent  destination  is  essential.  This  is 
implied  in  rule  after  rule  of  the  Declaration  of  London,  and 
is  stated  with  the  utmost  clearness  in  the  Report  of  the 
Drafting  Committee,1  which  was  drawn  up  by  M.  Renault, 
the  distinguished  French  jurist  who  represented  his  country 
at  the  Naval  Conference.  A  century  ago  it  was  so  fixed  and 
settled  a  principle  that  a  British  court  released  a  neutral 
Danish  vessel,  captured  at  Cape  Town  in  1806,  on  the  ground 
that  Great  Britain  was  in  possession  of  the  place  when  she 
arrived,  and  therefore  "  long  before  the  time  of  seizure  these 
goods  (i.e.  her  cargo)  had  lost  their  noxious  character  of 
going  as  contraband  to  an  enemy's  port."2  A  few  years 
later  a  hostile  fleet  lying  in  a  neutral  port  was  adjudged  by 
an  American  decision  to  be  a  belligerent  destination.  Sweden 
was  neutral  in  the  war  of  1812-1814  between  Great  Britain 
and  the  United  States,  and  the  Commercen?  a  Swedish  vessel, 
was  engaged  in  a  voyage  from  Cork  to  the  neutral  Spanish 
port  of  Bilboa.  But  she  carried  a  cargo  of  grain,  and  it  was 
shown  that  her  captain  meant  to  deliver  it  to  a  British  fleet 
lying  in  the  harbor.  The  vessel  was  captured  before  she 
reached  her  destination  by  an  American  privateer,  and  the 
case  came  finally  before  the  Supreme  Court,  which  condemned 
the  cargo  on  the  ground  of  hostile  destination.  The  princi- 
ple holds  good  when  there  is  no  question  of  a  port  of  any 
kind.  To  supply  the  fleets  or  single  cruisers  of  a  belligerent 
with  munitions  of  war  on  the  open  sea  would  be  as  clear  a 
case  of  contraband  as  carrying  a  consignment  of  shells  to  a 
naval  arsenal. 

Thirdly  and  lastly,  the  offence  is  complete  the  moment  a 

1  British  Parliamentary  Papers,  Miscellaneous,  No.  4  (1909),  p.  43. 

2  The  Trende  Sostre,  C.  Robinson,  Admiralty  Beports,  vol.  VI,  pp.  390-392, 
note. 

3  Wheaton,  Reports  of  the  Supreme  Court,  vol.  I,  p.  382 ;  Scott,  Cases  on 
International  Law,  p.  766. 


TRADE   IN   CONTRABAND   OF   WAR  721 

neutral  vessel  laden  with  contraband  leaves  neutral  waters 
for  a  belligerent  destination,  and  is  "deposited "  the  moment 
the  destination  is  reached  and  the  goods  delivered  thereat, 
and  not  dumped  down  elsewhere  as  a  blind.1  As  Lord  Sto- 
well  said,  in  the  case  of  the  Imina?  "  The  articles  must  be 
taken  in  delicto,  in  the  actual  prosecution  of  the  voyage  to  an 
enemy's  port."  The  offence  generally  exists  from  the  begin- 
ning to  the  end  of  the  outward  voyage,  and  ceases  to  exist 
the  moment  the  contraband  goods  are  placed  in  the  hands  of 
the  enemy.  But  if  during  the  voyage  the  guilty  destination 
has  been  changed  for  an  innocent  one,  as  happened  in  the 
case  of  the  Imina  cited  above,  or  if  a  hostile  destination  be- 
comes friendly  through  surrender  or  cession,  than  a  capture 
made  after  the  change  has  been  effected  will  not  result  in 
condemnation. 

§259 

Till  lately  there  was  great  divergence  of  opinion  between 
maritime  powers  as  to  the  penalty  for  carrying  contraband 
of  war.  They  were  agreed  that  the  contraband  The  penalty  for 

.       carrying  con- 

goods  should  be  confiscated,  though  even  on  this  trobsnd. 
point  there  had  been  at  least  one  treaty  which  provided  for  tem- 
porary sequestration  only.3  There  was  also  a  general  agreement 
that  in  certain  circumstances  the  ship  might  be  condemned  as 
well  as  the  goods.  But  few  states  held  the  same  opinions  as  to 
what  those  circumstances  were.  Some  powers,  such  as  Great 
Britain,  the  United  States,  and  Japan,  looked  chiefly  to 
ownership,  and  condemned  the  vessel  when  she  belonged  to 
the  proprietor  of  the  noxious  goods.  Others,  like  France, 
Germany,  and  Russia,  laid  most  stress  on  the  proportion 
between  the  noxious  goods  and  the  rest  of  the  cargo.4 

1  See  the  case  of  the  Yiksang,  given  in  Takahashi,  International  Law  dur- 
ing the  Chino-Japanese  War,  pp.  73-107. 

2  C.  Robinson,  Admiralty  Reports,  vol.  Ill,  p.  168. 

«  The  treaty  of  1795  between  the  United  States  and  Prussia  which  expir, 
in  1796.    See  Treaties  of  the  United  States,  p.  903. 

*  British  Parliamentary  Papers,  Miscellaneous,  No.  5  (1909),  pp.  71 


722  TRADE   IN   CONTRABAND   OF   WAR 

Other  tests,  or  combinations  of  tests,  were  sometimes  used. 
In  fact  the  Declaration  of  London  has  delivered  the  civilized 
world  from  a  diversity  which  was  as  dangerous  as  it  was 
confusing.  It  renders  liable  to  confiscation  not  only  contra- 
band goods,  but  the  vessel  which  carries  them  also,  "  if  the  con- 
traband reckoned  by  value,  weight,  volume,  or  freight,  forms 
more  than  half  the  cargo."  It  adds,  as  a  penalty  for  carry- 
ing a  less  proportion,  that,  in  case  the  goods  are  condemned 
and  the  vessel  released,  "  she  may  be  condemned  to  pay  the 
costs  and  expenses  incurred  by  the  captor  in  respect  of  the 
proceedings  in  the  national  prize  court  and  the  custody  of 
the  ship  and  cargo  during  the  proceedings."  And  further 
it  renders  the  owner  of  contraband  goods  liable  to  the  loss  of 
his  innocent  goods  found  on  board  the  same  vessel.1  If  less 
than  half  of  a  vessel's  cargo  is  contraband,  and  therefore  she 
herself  is  not  liable  to  condemnation,  her  master  may,  when 
circumstances  permit  and  the  captor  is  willing,  hand  over 
the  contraband  to  the  belligerent  war-ship.  Along  with  it 
must  be  given  certified  copies  of  all  relevant  papers,  which 
the  captor  must  send  in  for  adjudication,  while  he  may 
destroy  the  contraband  goods  at  sea.  But  the  owners  must 
be  compensated  in  the  event  of  a  decision  of  the  prize  court 
against  the  validity  of  the  capture.2  In  such  extremities  as 
would  have  justified  the  destruction  of  the  vessel  had  she 
been  liable  to  condemnation,3  the  captor  may  demand  as  a 
matter  of  right  the  handing  over  of  the  contraband  goods 
for  destruction.4 

In  three  cases  compensation  must  be  given,  though  the 
goods  are  lawfully  seized.  The  first  occurs  when  a  vessel  is 
encountered  at  sea,  her  master  being  unaware  of  the  out- 
break of  war  or  the  declaration  on  the  part  of  a  belligerent 
that  he  will  regard  as  contraband  certain  articles  which  form 
part  of  her  cargo,  the  second  when  the  master  has  become 
aware  of  the  outbreak  or  notification,  but  has  had  no  op- 

1  Declaration  of  London,  Articles  39-42.  8  See  §  191. 

2  Ibid.,  Articles  44,  64.  4  Declaration  of  London,  Article  64. 


TRADE    IN    CONTRABAND   OF    WAR  723 

portunity  of  discharging  the  contraband,1  and  the  third, 
which  we  have  already  mentioned,2  when  medical  stores  and 
comforts  are  seized  under  stress  of  urgent  necessity.3  To 
these  comparatively  small  dimensions  has  been  reduced  the 
right  of  compensation  for  capture  of  conditional  contraband 
claimed  by  many  continental  jurists.  But  there  is  nothing 
in  the  Declaration  to  prevent  any  state  from  giving  such 
compensation  if  it  pleases,  just  as  Great  Britain  used  to 
apply  preemption  to  conditional  contraband  and  such  abso- 
lute contraband  as  was  unmanufactured  ;ind  the  produce  of 
the  country  in  whose  vessel  it  was  found.4  A  shipmaster  can- 
not plead  ignorance  of  a  war  or  a  declaration  of  contraband, 
if  he  left  an  enemy  port  after  the  declaration  of  hostilities, 
or  a  neutral  port  after  the  arrival  of  the  notification  of  hos- 
tilities or  the  declaration  of  contraband.5 

1  Declaration  of  London,  Article  43.  2  See  §  255. 

3  Declaration  of  London,  Article  20. 

4  Holland,  Manual  of  Xaval  Prize  Lav,  p.  24. 

5  Declaration  of  London,  Article  43.     The  text  of  the  Declaration  ami  the 
Report  of  the  Drafting  Committee  can  be   found   in   HL'u'ins.    Tin-   //•/;/'<»• 
Peace   Conferences,  pp.  54 0-013.  and  Whitturk.    hih-rnut 

Appendi'.i-.  pp.  25fi-322.  The  text  alone  is  i^iven  in  77<«-  »/</</< •////  nt  t<>  tlif 
American  Journal  of  International  Lair,  vol.  III.  pp.  lnn-220. 


CHAPTER  VII 

T7NNEUTEAL  SERVICE 
§260 

THERE  are  acts  sometimes  performed  by  neutrals  which 
involve  an  entry  for  the  time  being  into  the  service  of  a 
The  nature  and  belligerent,  and  the  doing  for  him  what  is  of 

name  of  the  ...  .  . 

offence.  direct  advantage  to  him  in  his  war.     They  are 

not  mere  commercial  ventures,  like  carrying  contraband 
goods  to  a  neutral  market,  and  therefore  the  law  of  contra- 
band does  not  apply  to  them.  Its  formula  deal  with  ships 
and  destinations,  goods  and  cargoes.  They  cannot  be  made 
to  apply  to  such  acts  as  the  transport  of  noxious  persons  and 
the  transmission  of  warlike  intelligence,  which  are  two  of  the 
chief  of  the  forbidden  services.  Such  acts  differ  from  of- 
fences against  the  law  of  contraband  in  three  ways. 

Firstly,  there  is  a  difference  in  the  character  of  the  acts 
themselves.  What  takes  place  in  cases  pf  contraband  is 
done  purely  as  a  matter  of  trade.  Its  subjects  are  com- 
modities and  its  object  gain.  In  unneutral  service  the  acts 
are  not  acts  of  ordinary  commerce.  Their  predominant 
attributes  are  warlike  rather  than  mercantile.  It  is  true 
that  they  are  generally  done  for  reward ;  but  they  involve 
entering  for  a  time  into  the  service  of  a  belligerent,  and 
doing  for  him  something  so  helpful  in  his  war  that  neutrals 
ought  not  to  do  it.  What  Sir  William  Scott  said  in  the 
case  of  the  Atalanta  *  of  carrying  warlike  despatches  applies 
equally  well  to  all  other  forms  of  the  offence  we  are  consid- 
ering. He  who  does  such  things  "  under  the  privilege  of  an 

1  C.  Robinson,  Admiralty  Reports,  vol.  IV,  p.  440. 
724 


UNNEUTRAL   SERVICE  725 

ostensibly  neutral  character  does  in  fact  place  himself  in  the 
service  of  the  enemy  state,  and  is  justly  to  be  considered  in 
that  character." 

Secondly,  there  is  a  difference  in  the  proof  required.  Con- 
traband merchandise  must  be  taken  on  its  way  to  an  enemy 
destination  in  order  that  its  confiscation  may  be  legal.  But 
destination  is  immaterial  in  cases  of  unneutral  service.  In- 
deed, in  some  cases,  such  as  transmitting  signals  or  buoying 
a  passage  for  a  belligerent  fleet,  there  cannot  be  said  to  be  a 
destination  at  all.  It  is  the  nature  of  the  mission  which  is 
the  important  matter.  The  point  from  which  the  vessel 
starts  and  the  point  at  which  it  arrives  may  both  be  neutral 
ports,  and  yet  she  may  have  done  something  during  the  pas- 
sage between  them  to  subject  her  to  severe  penalties.  Let  us 
suppose  she  has  laid  mines  for  one  belligerent.  If  the  other 
captures  her,  we  may  be  sure  she  will  receive  the  utmost 
punishment  allowed  by  International  Law.  Again,  in  order 
to  secure  the  release  of  the  vessel  in  a  case  of  contraband,  it 
is  enough  to  show  that  she  has  delivered  the  noxious  cargo. 
But  this  would  not  suffice  in  many  cases  of  unneutral  service. 
For  instance,  a  neutral  transport  would  be  liable  to  condem- 
nation as  long  as  she  remained  in  the  service  of  the  enemy, 
even  though  the  troops  she  earned  had  been  disembarked 
and  she  was  captured  in  ballast  on  the  return  voyage. 

Thirdly,  there  is  a  difference  in  the  penalty  enforced.  In 
cases  of  contraband  it  is  the  confiscation  of  the  noxious  cargo, 
and  that  of  the  vessel  also  in  aggravated  cases.  In  cases  of 
unneutral  service  it  is  the  confiscation  of  the  vessel  along 
with  any  unlawful  things  she  may  be  carrying,  but  not  that 
of  the  cargo  except  in  aggravated  cases. 

We  can  now  see  that  an  attempt  to  discuss  the  kind  of 
acts  we  have  been  considering  as  if  they  came  under  the  law 
of  contraband  must  lead  to  nothing  but  confusion.  Hall 
distinguished  between  carrying  contraband  and  performing 
services  for  a  belligerent,  but  calls  the  latter  "  analogues  of 
contraband,"  though  he  confesses  that  the  analogy  "is  always 


726  tTNNEUTRAL  SERVICE 

remote."1  Oppenheim  upholds  Hall's  phrase,  while  declar- 
ing that  a  "  distinct  treatment "  of  the  services  in  question 
"is  certainly  desirable."2  Holland  uses  the  expression  En- 
emy Service,3  which  describes  the  transgressions  referred  to 
from  the  point  of  view  of  one  of  the  belligerents  only.  The 
same  may  be  said  of  Assistance  Hostile,  which  is  the  heading 
of  Chapter  III  of  the  official  French  text  of  the  Declaration 
of  London.  The  English  translation  uses  the  phrase  Unneu- 
tral  Service,  and  it  seems  a  satisfactory  name,  though  Oppen- 
heim calls  it  "  misleading  "  without  giving  reasons  for  his 
unfavorable  opinion.4  As  a  description  it  is  accurate.  It 
points  to  the  most  prominent  characteristic  of  the  offences 
described;  and  it  has  the  merit  of  avoiding  any  reference  to 
contraband.  It  thus  emphasizes  the  fact  that  it  deals  with 
acts  which  require  special  rules  of  their  own,  and  do  not  need 
to  come  as  interlopers  within  the  ambit  of  the  law  applicable 
to  something  else  through  the  back  door  of  a  remote  analogy. 
This  view  of  the  question  was  taken  in  1908  by  Sir  J.  C. 
Bigham  in  his  judgment  in  the  case  of  the  Nigretia;5  and  it 
has  since  received  the  sanction  of  the  Naval  Conference  of 
1908-1909,  which  devoted  a  separate  chapter  to  Unneutral 
Service  in  the  Declaration  of  London.  Now  that  a  set  of 
rules  referring  to  it  has  found  a  place  of  its  own  in  a  great 
law-making  document,  we  may  hope  to  hear  no  more  of  mis- 
leading names  and  analogies  so  remote  that  they  elucidate 
nothing. 

The  Declaration  of  London  gave  the  world  for  the  first 
time  a  coherent  law  of  unneutral  service.  There  is  general 
agreement  that  some  measure  of  punishment  is  necessary  in 
order  to  deter  neutral  individuals  from  the  performance  of 
acts  which  are  distinctly  unneutral  in  their  character,  and 

1  International  Law,  5th  ed.,  p.  673. 

2  Ibid.,  vol.  II,  p.  447.       8  Neutral  Duties  in  a  Maritime  War,  pp.  12,  14. 

4  International  Law,  vol.  II,  p.  447. 

5  Solicitors'1  Journal,  vol.  62,  p.  317  ;  Takahashi,  International  Law  applied 
to  the  Russo-Japanese  War,  pp.  551-557,  639-674. 


TJNNEUTRAL    SERVICE  727 

yet  not  of  a  kind  which  their  governments  are  bound  to  pre- 
vent. Some  are  trivial ;  but  some  fall  little  short  of  actual 
participation  in  the  war  without  open  enrolment  in  a  bellig- 
erent fighting  force.  Moreover,  the  conditions  of  modern 
warfare  are  causing  a  rapid  increase  in  the  numbers  of  such 
acts,  especially  as  regards  naval  matters.1  No  fleet  can  now 
keep  the  seas  without  a  long  train  of  auxiliary  vessels ;  and 
neutrals  are  often  engaged  in  supplying  fuel,  executing  re- 
pairs, laying  cables,  and  many  other  matters  most  of  which 
were  unknown  half  a  century  ago.  In  the  old  days  unneu- 
tral  service  was  largely  concerned  with  the  carriage  of  de- 
spatches in  ships,  which  can  hardly  be  regarded  as  a  source 
of  liability  since  the  Hague  Conference  of  1907  exempted 
mail-bags  from  belligerent  search.2  The  transport  of  per- 
sons in  the  warlike  service  of  the  enemy  was  another  great 
head  of  offence.  It  still  remains,  but  is  largely  modified  by 
the  constant  obligation  of  military  service,  the  frequency  and 
ease  of  emigration,  and  the  existence  of  an  enormous  passen- 
ger traffic  carried  on  by  great  ocean  liners.  The  old  cases 
were  few  in  number,  and  the  rules  laid  down  in  them,  be- 
sides being  by  no  means  exhaustive,  did  not  respond  to  mod- 
ern needs.  It  was  necessary  to  evolve,  from  them  and  from 
the  equities  of  the  case,  a  chapter  of  law  applicable  to  present 
conditions,  and  so  expressed  that  it  could  cover  the  new 
points  that  may  be  expected  to  arise  with  startling  fre- 
quency. This  task  the  Naval  Conference  of  1908-1909 
performed  successfully.  It  began  by  making  a  distinction 
between  the  less  serious  and  the  more  serious  cases,  and  then 
worked  out  a  set  of  rules  for  each  in  the  manner  about  to  be 
described. 

1  Speech  of  Mr.  Eyre  Crowe  at  the  Fourth  Session  of  the  Naval  Conference ; 
see  British  Parliamentary  Papers,  Miscellaneous,  No.  5  (1909),  p.  166. 
a  See  §  183. 


728  TJNNEUTRAL   SERVICE 

§261 

The  Declaration  of  London  deals  first  with  unneutral  ser- 
vices in  which  the  gravity  of  the  offence  is  not  deemed  to  be 
The  lesser  offences  more  than  moderate.  They  render  the  vessel 

of  unneutral  iii-i. 

service.  and  any  goods  on  board  her  belonging  to  her 

owner  liable  to  confiscation,  and  place  her  in  the  position  of 
a  neutral  ship  seized  when  carrying  contraband.  This  effect 
arises,  first,  if  the  vessel  "  is  on  a  voyage  specially  under- 
taken with  a  view  to  the  transport  of  individual  passengers 
who  are  embodied  in  the  armed  forces  of  the  enemy,  or  with 
a  view  to  the  transmission  of  intelligence  in  the  interest  of 
the  enemy  "  ;  and  second,  "  if  to  the  knowledge  of  the  owner, 
the  charterer,  or  the  master,  she  is  transporting  a  military 
detachment  of  the  enemy,  or  one  or  more  persons  who,  in 
the  course  of  the  voyage,  directly  assist  the  operations  of  the 
enemy."1  We  must  note  that  in  the  first  case  the  passen- 
gers are  travelling  as  individuals,  but  the  vessel  has  not  taken 
them  on  board  in  the  ordinary  way  of  business.  She  has  un- 
dertaken her  voyage  specially,  though  not  exclusively,  in  their 
behalf.  They  must  be  embodied  in  the  armed  forces  of  the 
enemy ;  but  in  the  opinion  of  the  whole  Naval  Conference 
this  description  did  not  include  persons  resident  abroad  who 
have  been  summoned  to  take  their  places  in  the  ranks,  but 
have  not  already  joined  the  corps  to  which  they  are  to  be- 
long.2 This  is  important  in  view  of  the  large  number  of 
emigrant  reservists  who  will  be  returning  to  the  colors  in 
the  event  of  an  outbreak  of  war.  The  transmission  of  intel- 
ligence is  more  likely  in  future  to  take  the  form  of  sending 
signals  or  wireless  messages  than  the  carriage  of  despatches ; 
but,  whatever  plan  is  adopted,  the  vessel  must  not  be  ex- 
clusively engaged  in  the  work,  if  she  is  to  come  under  the 
rules  applicable  to  lesser  offences  and  be  liable  to  the  lesser 

1  Declaration  of  London,  Article  45. 

2  Report  of  Drafting  Committee,  for  which  see  British  Parliamentary  Papers, 
Miscellaneous,  No.  4  (1909),  p.  63. 


UNNEUTRAL  SERVICE  729 

penalty.  In  the  second  case  it  is  required  that  a  military 
detachment  of  the  enemy  shall  be  on  board,  or  one  or  more 
persons  who  during  the  voyage  directly  assist  the  operations 
of  the  enemy,  for  instance  by  signalling  or  in  some  other 
manner  that  can  be  detected.  In  this  case,  since  soldiers  or 
sailors  might  travel  in  civilian  clothes,  or  signals  be  sent 
secretly,  it  is  necessary  to  insist  on  the  knowledge  of  either 
owner,  charterer,  or  master. 

Ignorance  of  the  outbreak  of  hostilities,  or  lack  of  op- 
portunity for  discharging  passengers  after  becoming  aware 
of  it,  are  good  defences  when  a  vessel  is  met  at  sea  while 
engaged  in  the  performance  of  such  acts  as  we  have  just  de- 
scribed. She  cannot  then  be  condemned.1  The  belligerent 
cruiser  may,  however,  demand  the  surrender  as  prisoners  of 
war  of  the  enemy  soldiers  or  sailbrs  on  board,  while  the 
vessel  is  allowed  to  go  on  her  way.2  The  general  rule  of 
International  Law  is  that  no  person  can  be  removed  at  sea 
by  a  belligerent  war-ship  from  a  neutral  vessel  which  is  her- 
self free  from  capture.  But  an  exception  was  made  in  this 
case,  in  order  that  "  large  passenger  steamers  under  a  neutral 
flag  should,  if  possible,  be  freed  from  the  costly  inconvenience 
of  being  taken  into  a  prize  court  and  there  detained,  perhaps 
for  a  prolonged  period,  merely  because  a  few  individuals 
forming  part  of  the  armed  forces  of  a  belligerent,  but  whose 
military  status  was  unsuspected  by  the  owners  or  captain  of 
the  vessel,  were  among  her  passengers."3  Ignorance  of  the 
war  on  the  part  of  the  neutral  shipmaster  is,  however,  not  to 
be  lightly  conceded.  He  is  deemed  to  be  aware  of  its  ex- 
istence if  he  "  left  an  enemy  port  subsequently  to  the  out- 
break of  hostilities,  or  a  neutral  port  subsequently  to  the 
notification  of  hostilities  to  the  power  to  which  such  port 
belongs."4  But,  of  course,  it  is  quite  possible  that  a  neutral 

1  Declaration  of  London,  Article  45.  3/6td.,  Article  47. 

8  Report  of  British  delegation  at  the  Naval  Conference,  for  which  see 
British  Parliamentary  Papers,  Miscellaneous,  No.  4  (1909),  p.  98. 
*  Declaration  of  London,  Article  45. 


730  TTNNEUTRAL  SERVICE 

shipmaster  might  know  of  the  existence  of  a  war,  and  yet 
be  quite  ignorant  that  he  had  among  his  passengers  a  few 
belligerent  officers  or  men. 

The  assimilation  of  the  ship  in  the  cases  described  above 
to  "a  neutral  vessel  liable  to  confiscation  for  carriage  of 
contraband"  means  much.  Her  non-contraband  cargo,  if 
she  has  any,  will  be  secure,  unless  it  belongs  to  her  owner  or 
is  less  than  half  of  her  total  cargo.  Her  liability  to  capture 
ceases  at  the  termination  of  her  voyage;  and  as  a  neutral 
vessel  she  cannot  be  destroyed  at  sea,  unless  her  preservation 
would  endanger  the  safety  of  the  capturing  war-ship,  or  the 
success  of  the  operations  on  which  it  was  engaged  at  the 
time.1  Moreover  she  has  a  full  right  of  appeal  to  the  Inter- 
national Prize  Court  from  the  decisions  of  the  national  tri- 
bunals before  which  she  is  taken  at  first. 

§  262 

According  to  the  Declaration  of  London  unneutral  services 
of  the  graver  and  more  serious  kind  render  the  vessel  and 
The  graver  of-  any  goods  on  board  belonging  to  her  owner  lia- 

fences  of  unneu-  *  . 

trai  service.  ble  to  confiscation,  and  place  her  in  the  position 

of  a  captured  enemy  merchantman.  The  acts  which  subject 
the  neutral  vessel  to  these  penalties  occur  in  several  sets  of 
circumstances.  The  first  case  arises  when  she  takes  a  "  direct 
part  in  hostilities."2  The  phrase  is  broad  and  wide  in  order 
that  it  may  cover  many  eventualities.  It  is  possible  to  take 
part  in  hostilities  without  firing  a  shot.  A  neutral  fishing 
vessel  might  show  the  channel  to  a  fleet  advancing  to  the 
attack  of  an  enemy  squadron,  or  lay  mines  or  remove  them 
or  allow  herself  to  be  used  for  the  discharge  of  torpedoes,  or 
reconnoitre  for  the  enemy,  or  block  wireless  messages  in  his 
interest.  If  she  did  these  things  under  fire,  and  was  injured 
or  destroyed,  she  would  richly  deserve  her  fate.  By  behav- 
ior as  an  enemy  she  would  forfeit  the  right  to  be  treat^u.  as 
1  See  §  191.  2  Declaration  of  London,  Article  46. 


UNNEUTRAL   SERVICE  731 

a  neutral.  Indeed,  it  may  be  questioned  whether  the  penalty 
of  being  treated  as  an  enemy  merchantman  is  not  too  light 
for  some  of  the  possible  cases.  Ought  not,  for  instance,  the 
whole  crew  of  a  fishing  boat  seized  while  laying  mines  for 
the  enemy  to  be  detained  as  prisoners  of  war,  if  not  shot  as 
unlawful  combatants  ?  They  must  have  known  that  they 
were  performing  an  act  of  pronounced  hostility,  likely  to  be 
more  beneficial  to  the  side  which  employed  them  than  any 
deed  of  valor  done  in  the  course  of  actual  combat.  A  second 
case  occurs  when  a  neutral  vessel  "  is  under  the  orders  or 
control  of  an  agent  placed  on  board  by  the  enemy  govern- 
ment."1 This  is  proof,  open  and  irrefutable,  that  the  ship 
is  for  the  time  being  an  enemy.  She  must,  therefore,  be 
treated  as  one  while  the  enemy  control  lasts.  The  third  of 
the  cases  provided  for  takes  place  when  the  neutral  vessel 
"  is  in  the  exclusive  employment  of  the  enemy  government."  2 
She  may  be  a  collier  or  a  repair-ship  accompanying  the  en- 
emy's fleet.  When  such  a  service  is  going  on,  there  will 
generally  be  a  contract  of  letting  and  hiring  between  the 
neutral  owner  and  the  naval  authorities  of  the  enemy,  and  if 
this  is  found  on  board  in  the  form  of  a  charter  party,  it  will 
afford  the  best  evidence  of  the  truth  of  the  charge.  But 
other  proof  will  do  as  long  as  it  is  sufficient,  the  important 
point  being  that  the  employment  must  be  exclusive.  In  the 
fourth  place  the  vessel  must  be  "  exclusively  engaged  at  the 
time  in  the  transport  of  enemy  troops  or  the  transmission  of 
intelligence  in  the  interest  of  the  enemy."3  Here  again 
stress  must  be  laid  on  the  exclusiveness  of  the  engagement. 
In  these  circumstances,  too,  there  would  generally  be  a  charter 
party,  but  sufficient  evidence  can  as  a  rule  be  obtained  with- 
out it.  The  case  differs  from  the  conveyance  of  troops  and 
transmission  of  intelligence  mentioned  in  the  previous  section 
in  that  the  vessel  is  devoted  to  the  forbidden  service  exclu- 
sivelv  and  permanently.  She  is,  therefore,  liable  to  capture 
as  .^ng  as  the  service  lasts,  even  if  she  has  no  troops  on  board 
1  Declaration  of  London,  Article  46.  2  Ibid.  8  Ibid. 


732  UNNEUTRAL   SERVICE 

and  is    not    transmitting    intelligence    at    the    moment    of 
seizure.1 

In  these  four  cases,  as  we  have  already  seen,  the  delinquent 
vessel  is  placed  in  the  position  of  a  captured  enemy  merchant- 
man, which  means  that  all  enemy  goods  will  be  confiscated, 
and  all  goods  will  be  presumed  to  be  enemy  goods  till  the 
contrary  is  proved.  The  vessel  herself  may  be  destroyed  at 
sea  without  the  obligation  of  compensation  which  exists  when 
a  neutral  prize  is  so  disposed  of  in  circumstances  which  do 
not  amount  to  extreme  necessity.  But  she  does  not  lose 
the  right  of  appeal  to  the  International  Prize  Court.2 

1  Report  of  the  Drafting  Committee,  for  which  see  British  Parliamentary 
Papers,  Miscellaneous,  No.  4  (1909),  p.  55. 

2  For  the  text  of  the  Declaration  of  London  see  Higgins,  The  Hague  Peace 
Conferences,  pp.  540-566 ;  Whittuck,  International  Documents,  Appendix, 
pp.  256-274 ;  Supplement  to  the  American  Journal  of  International  Law, 
vol.  Ill,  pp.  190-220.     The  first  two  books  contain  the  Report  of  the  Drafting 
Committee  also.    For  illuminating  comments  on  that  part  of  the  Declaration 
which  refers  to  unneutral  service,  see  Dupuis,  Le  Droit  de  la  Guerre  Mari- 
time, ch.  VIII. 


INDEX   OF  CASES 


ADONIS,  The,  696,  note  2. 

Adula,  The,  689. 

Alabama,  The,  105,  111,  142,  595,  637, 

652. 

Amy  Warwick,  The,  352. 
Anna,  The,  146. 
Arguelles,  259. 
Argun,  The,  347. 
Atalanta,  The,  724,  725. 

Betsy,  The,  683. 
Boedes  Lust,  The,  337,  338. 
Brown  v.  The  United  States,  426. 
Bundesrath,  The,  473,  718. 

Carlotta,  The,  466,  note. 

Carolina,  The,  453. 

Caroline,  The  (1839),  610. 

Caroline,  The  (1904),  652. 

Casa  Blanca,  German  Consul  at,  322, 

323. 

Castioni,  263. 

Cherokee  Nation  v.  State  of  Georgia,  63. 
Chesapeake,  The,  469. 
Circassian,  The,  689. 
Commercen,  The,  614,  720. 
Cumberland,  The,  453. 
Cutting,  242  note,  243. 

Daifjie,  The,  453. 

Delagoa  Bay,  110,  111. 

Depierre,  218. 

Detroit,  The,  236. 

Don  Pantaleon  Sa,  312,  313. 

Ekaterinoslav,  The,  348. 
Exchange,  The,  248. 

Fanny,  The,  383. 
Florida,  The,  625,  626. 
Franciska,  The,  687,  note  2. 
Franconia,  The,  226. 

General,  The,  473. 

General  Barrundia,  251,  252. 

Guiteau,  313,  314. 

Halliday  Macartney,  Sir,  304. 
Harmony,  The,  377,  378. 


Herzog,  The,  473. 
Hofer,  218. 
Hoop,  The,  357. 
Huascar,  The,  236. 

Imina,  The,  721. 
Indian  Chief,  The,  379. 
Investigator,  The,  453. 

Kasuga,  The,  632. 

Kaufman  c.  Gerson  and  wife,  224  note. 

Knacke,  218. 

Knight  Commander,  The,  485. 

Lena,  The,  642. 
Leopard,  The,  469. 
Leucade,  The,  385,  386. 

Malacca,  The,  234,  528. 

Maria,    The    (1799),    109    note,    670, 

671. 

Maria,  The  (1805),  717  note. 
Marianna  Flora,  The,  468. 
Marquis  de  Somarvelles,  The,  462. 
Meunier,  263. 
Mukden,  The,  347,  348. 

Neptunus,  The,  687,  note  2. 
Nereide,  The,  383. 
Nigretia,  The,  726. 
Nisshin,  The,  632. 

Oldhamia,  The,  411. 

Oleg,  The,  411. 

Orel,  The,  411. 

Olinde  Rodrigues,  The,  684. 

Peterburg,  The,  234,  527,  528. 
President,  The,  248. 

Ranger,  The,  621. 
Rauscher,  262. 
Reshitelni,  The,  610,  611. 

Santissima  Trinidad,    The,    480    note, 

654. 

Scott,  368. 
Sea  Bride,  The,  142. 
Shenandoah,  The,  235. 
733 


734 


INDEX   OF   CASES 


Sitka,  The,  248. 

Smolensk,  The,  527,  528. 

Society    for    the    Propagation    of    the 

Gospel  v.  Town  of  Newhaven,  363. 
Somers,  The,  636,  637. 
Stert,  The,  685. 
Strathclyde,  The,  226. 
Sutton  v.  Sutton,  363. 
Swineherd,  The,  590. 

Thirty  Hogsheads  of  Sugar,  384. 
Tolen,  218. 

Trende  Sostre,  The,  720,  note  2. 
Twee  Gebroeders,  The,  609. 


Two  Friends,  The,  467. 
Tyne,  The,  247. 

Venus,  The,  379. 
Vigilantia,  The,  376. 
Virginius,  The,  451. 

War  Onskan,  The,  466  note. 
Weeks,  260. 
Winslow,  261. 

Yikseang,  The,  721. 

Yonge  Jacob  and  Johanna,  The,  454. 

Yonge  Margaretha,  The,  706. 


INDEX 


Abyssinia,  170. 

Accretion,  title  by,  148,  162. 

Adis  Ababa,  treaty  of,  170. 

Africa,  modern  attempts  to  partition, 
150,  151,  158-161,  167,  173-175; 
navigation  of  its  great  rivers,  210; 
international  convention  for  putting 
down  slave  trade  in,  238-241. 

Air,  navigation  of,  146,  147. 

Aix-la-Chapelle,  Congress  of,  299. 

Alabama  Controversy,  105,  111,  633, 
634,  637,  652,  700. 

Alexander  VI,  Pope,  his  Bulls  dividing 
the  New  World  between  Spain  and 
Portugal,  149. 

Alternat,  The,  292. 

America,  effect  of  its  discovery  on 
International  Law,  148-150,  186, 
187 ;  its  division  among  civilized 
states,  150;  its  state  system,  279- 
288. 

American  Society  of  International 
Law,  100. 

Angary,  626-628. 

Annam,  169,  170. 

Arbitral  Tribunals,  580;  Permanent 
Court  of  Arbitration,  581,  582; 
Judicial  Arbitration  Court,  583 ; 
proposal  to  give  to  the  International 
Prize  Court  the  functions  of  a  High 
Court  of  Arbitral  Justice,  584. 

Arbitration,  110,  111,  283,  579-586. 

Aristotle,  18. 

Armed  Neutralities,  The,  105,  112,  661, 
663,  664,  671,  677-679. 

Armistices,  564-567. 

Asia,  its  state  system,  273,  274. 

Asylum,  Right  of,  624. 

Austin,  John,  his  account  of  law,  10. 

Australia,  155,  156. 

Austria-Hungary,  externally  one  state, 
60 ;  accepts  aid  of  Russia  in  Hun- 
gary, 134 ;  acts  as  agent  of  Holy 
Alliance,  135 ;  acquires  Bosnia  and 
Herzegovina,  180,  181,  270,  329,  330 ; 
is  one  of  the  Great  Powers,  269. 

Ayala,  Balthazar,  29. 


Balance  of  Power,  theory  of,  130-134 ; 
does  not  extend  to  New  World,  132, 
272 ;  its  modern  form,  132-134. 

Barcelona,  26.  • 

Base  of  Operations,  618,  619. 

Belgium,  a  neutralized  state,  270,  277, 
301,  599,  600;  connection  of  with 
Congo  Free  State,  85-87,  161,  241. 

Belligerency,  Recognition  of,  70-72, 
351-354. 

Bentham,  Jeremy,  coins  phrase  Inter- 
national Law,  8. 

Bering  Sea,  187-192. 

Berlin,  Treaty  of  (1878),  45,  89,  102, 
180,  328-330. 

Bismarck,  Prince,  131,  497. 

Black  Sea  Conference,  328. 

Blockade,  origin  and  nature  of,  675- 
680 ;  kinds  of,  680-683  ;  heads  of  the 
law  of,  683 ;  essentials  of  effective- 
ness of,  683-688;  closure  without 
ships,  685,  686 ;  closure  by  munic- 
ipal regulation,  686;  declaration 
and  notification,  686-688 ;  days  of 
grace,  687,  695;  impartiality,  688; 
admission  of  neutral  warships,  688; 
termination  of  blockade,  688-690; 
knowledge  of  blockade,  690,  691 ; 
violations  of  blockade,  692-695 ;  area 
of  operations,  692,  693  ;  penalty,  696. 

Bliintschli,  J.  K.,  upholds  Prussian 
scheme  of  a  Volunteer  Navy,  524 ; 
on  contraband,  707. 

Bodin,  Jean,  a  forerunner  of  Austin,  10. 

Bombardments,  446,  539-543. 

Booty,  429^131. 

Brazil,  89,  236,  355,  498,  583,  613,  626. 

British  South  Africa  Company,  73-75, 
184,  332. 

Brussels  Conference  on  land  warfare 
(1874),  392,  434,  511,  513,  515,  516, 
539,  544. 

Brussels  Conference  on  slave  trade 
(1890),  Final  Act  of,  238-241,  361. 

Bulgaria,  64,  65,  270,  329. 

Bynkershoek,  Cornelius  van,  99,  141, 
588,  593,  719. 


735 


730 


INDEX 


Calvo,  Carlos,  on  exemption  of  private 
property  from  capture  at  sea,  497 ; 
on  Prussian  scheme  of  a  volunteer 
navy,  524. 

Canada,  not  a  sovereign  state,  55 ;  its 
sea  fisheries,  203-207. 

Canning,  George,  135. 

Canon  Law,  25,  27. 

Canossa,  23. 

Capitulations,  562-564. 

Capture  at  sea,  its  early  growth,  27 ; 
applies  to  private  as  well  as  public 
.enemy  property,  451 ;  exceptions, 
452-463  ;  case  of  enemy  goods  under 
neutral  flag,  460,  461 ;  recapture, 
465—168 ;  obligation  of  captors  to 
send  in  prizes  for  adjudication,  482- 
486 ;  proposal  to  exempt  private 
property  from  hostile  seizure,  494- 
508. 

Capture  of  fortified  places,  420,  421. 

Cargoes,  National  character  of,  373, 
374,  382,  460. 

Cartels  and  cartel-ships,  453,  454,  558, 
559. 

Cellamare,  Prince  of,  311. 

Central  American  Court  of  "Justice, 
287,  586. 

Central  American  Peace  Conference, 
586. 

Cession,  92-96,  162-164. 

Charlemagne,  22. 

China,  a  subject  of  International  Law, 
84;  its  Boxer  troubles,  126,  317; 
leases  certain  territories,  175—177 ; 
makes  Yangtse-Kiang  agreement 
with  Great  Britain,  182 ;  its  war 
with  Japan,  273 ;  suffers  reprisals 
from  France,  336;  Russia  erects 
wireless  telegraphy  station  on  its 
territory,  647 ;  its  attitude  to- 
wards Declaration  of  Paris,  664, 
667. 

Christina,  Queen  of  Sweden,  31. 

Clayton-Bulwer  Treaty,  121,  200. 

Cleveland,  President,  refuses  to  recall 
Mr.  Keiley,  303 ;  dismisses  Lord 
Sackville,  305,  306. 

Client  States,  65. 

Coal,  643-646. 

Colonial  Protectorates,  77,  78,  168- 
175. 

Combatants,  their  treatment  in  war, 
395-397,  414. 

Comity  of  Nations,  11. 

Condominium,  81,  178-180. 


Confederations,  59,  61,  68-70. 

Congo  Free  State  (Belgian  Congo),  its 
foundation  and  recognition,  85,  89 ; 
its  maladministration,  86,  161,  241 ; 
reforms  after  death  of  Leopold  II, 
87,  161 ;  gives  a  preferential  right  of 
succession  to  France,  182. 

Conquest,  93,  94  ;  title  by,  164-166. 

Consolato  del  Mare,  19,  25,  657-660, 
662,  665. 

Constantino,  Emperor,  23. 

Consuls,  their  courts  and  jurisdiction 
in  Oriental  countries,  254-256 ;  the 
nature  of  their  office,  320,  321 ;  their 
immunities,  322,  323. 

Continuous  Voyages,  doctrine  of,  109, 
110;  does  not  apply  to  blockade, 
694,  717,  718;  applies  to  absolute 
contraband,  716,  718,  719 ;  does  not 
as  a  rule  apply  to  conditional  con- 
traband, 716,  718. 

Contraband  of  war,  its  nature  and  his- 
tory, 697,  698;  neutral  states  not 
bound  to  restrain  their  subjects  from 
carrying  contraband,  698-702  ;  diffi- 
culty of  deciding  what  articles  are 
contraband,  702-705 ;  distinction 
between  absolute  and  conditional 
contraband,  705-709 ;  the  three  lists 
of  the  Declaration  of  London,  709- 
712 ;  machinery  for  altering  them 
in  practice,  712-714  ;  enemy  destina- 
tion essential,  714,  720 ;  differences 
in  destination  between  absolute  and 
conditional  contraband,  715,  716 ; 
doctrine  of  continuous  voyages,  717- 
719 ;  essentials  of  guilt,  719-721 ; 
penalty,  721,  722. 

Contract  debts,  344,  580. 

Contributions,  443,  445-447. 

Converted  merchantmen,  526-532. 

Convoy,  472,  669-674. 

Copyright,  6. 

Corfu  and  Paxo,  603. 

Corporations,  as  subjects  of  Inter- 
national Law,  73-76. 

Crete,  80,  341,  342. 

Cuba,  66,  67,  126,  128,  281,  400,  613, 
687. 

Gushing,  Caleb,  on  the  Silka  case,  248. 

Cutting  case,  The,  243. 

Cyprus,  79,  80,  180. 

Dana,  R.  H.,  on  jurisdiction  over  sea 
for  revenue  purposes,  193 ;  on  im- 
munity of  ambassador's  private 


INDEX 


737 


property,  320;  on  Prize  Court  pro- 
cedure, 480 ;  on  Angary,  628. 

Dardanelles  and  Bosphorus,  passage 
of,  196,  197,  234,  527. 

Declaration  of  London  (1909),  50,  51, 
105,  110,  275,  278,  374,  380,  460, 
469,  472,  485,  493,  507,  672,  673, 
677,  684-696,  712-714,  716-718, 
720,  726,  728,  730. 

Declaration  of  Paris  (1856),  45,  103, 
107,  461,  522,  664-667,  679,  686. 

Declaration  of  St.  Petersburg  (1868), 
46,  544. 

Declaration  of  1907  as  to  maintenance 
of  status  quo  in  the  Mediterranean, 
121. 

Declaration  of  1908  as  to  maintenance 
of  status  quo  in  the  Baltic  and  North 
sea,  121. 

Delagoa  Bay,  111,  154,  155. 

Despagnet,  Frantz,  his  suggestion  as  to 
surrender  of  political  offenders,  265, 
266 ;  on  trading  with  the  enemy, 
358. 

Destruction  of  prizes  at  sea,  482—486. 

Devastation,  547-551. 

Diplomatic  Ceremonies,  299,  300,  306- 
309. 

Diplomatic  Ministers,  early  missions 
of  temporary,  295 ;  growth  of  per- 
manent embassies,  296 ;  classifica- 
tion of,  297-299  ;  immunities  of,  245, 
310-320. 

Disarmament,  574-576. 

Discovery,  no  title  to  territory  gained 
by  it  alone,  148,  149,  152,  156. 

Domicile,  of  origin,  223 ;  of  choice, 
223 ;  matters  determined  by,  223, 
224,  372  ;  domiciled  aliens  not  liable 
to  military  service,  367,  368,  509, 
510  ;  effect  of  on  belligerent  capture, 
374-379. 

East  India  Company,  76. 

Egan,  Mr.,  receives  Chilian  refugees, 
317. 

Egypt,  80-82,  136,  137,  177-179,  255, 
256,  271,  300,  644. 

Embargo,  337,  338. 

Enemy  character;  how  and  to  what 
extent  acquired  by  persons,  366-379 ; 
by  property,  379-386. 

Equality  of  states;  meaning  of  phrase, 
268,  275,  276 ;  doctrine  of  needs  re- 
vision, 269-288;  expression  of  in 
ceremonial  observances,  288-294. 


Erie,  Lake,  163. 

Expeditions,  warlike,  619-622. 

Exterritoriality,  fiction  of,  228,  229. 

Extradition,  its  nature,  258;  earliest 
extradition  treaty,  258 ;  practices 
as  to  surrender  in  absence  of  treaty, 
258-260;  usual  provisions  of  ex- 
tradition treaties,  260-262;  nature 
of  political  offences,  262-266. 

Federal  Unions,  59-61,  68. 

Feudalism,  its  influence  in  making  sov- 
ereignty territorial,  26 ;  its  decay,  27. 

Fines,  443,  447-449. 

Finett,  Sir  John,  289. 

Flags  of  Truce,  557,  558. 

Foreign  Enlistment  Acts,  595,  596,  638. 

France,  its  intervention  in  Egypt,  81, 
82,  137 ;  recognizes  independence  of 
the  United  States,  88,  89;  restores 
Ferdinand  VII  of  Spain,  135 ;  its 
early  claims  in  the  New  World,  149, 
156 ;  cedes  Louisiana  to  Spain,  163  ; 

.  cedes  Alsace  and  part  of  Lorraine  to 
Germany,  164 ;  makes  agreement 
with  England  as  to  Egypt  and 
Morocco,  199,  271,  and  as  to  New- 
foundland fisheries,  203 ;  its  rules 
as  to  citizenship,  214,  220,  224;  its 
practice  as  to  foreign  merchantmen 
in  its  ports,  226-228 ;  its  operations 
against  China  (1884),  336;  its  views 
as  to  Pacific  Blockade,  339,  340; 
expels  German  subjects  from  depart- 
ment of  the  Seine  (1870),  388;  ac- 
quires the  neutralized  province  of 
Savoy,  602,  603 ;  differs  from  Great 
Britain  as  to  supplies  of  coal  to  bel- 
ligerent warships,  643-646 ;  its  doc- 
trine of  infection,  658,  662  ;  its  views 
as  to  blockade,  676,  677,  690-692; 
its  attempt  to  make  rice  contraband, 
701 ;  regards  coal  as  non-contraband, 
704. 

Frankfort,  Treaty  of  (1871),  164. 

Fuca,  Straits  of,  144. 

Fugitive  slaves,  252,  253. 

Fundy,  Bay  of,  144. 

Gaius,  38. 

Gallatin,  Mr.,  arrest  of  his  coachman, 
317  318 

Geneva  Arbitration  (1871),  618,  633, 
634,  652,  700. 

Geneva  Convention  (made  1864,  re- 
vised 1906),  45,  46,  399,  400,  404- 


738 


INDEX 


408,  421,  422;  application  of  its 
principles  to  naval  warfare,  408—414. 

Gentilis,  Albericus,  29,  98. 

German  East  Africa  Company,  73. 

Germany,  the  constitution  of  the  Em- 
pire, 70 ;  its  recognition  of  the 
Congo  Free  State,  89 ;  agrees  with 
Great  Britain  as  to  sphere  of  in- 
fluence in  Western  Pacific,  121 ;  an- 
nexes .part  of  New  Guinea,  153,  154 ; 
gains  Alsace  and  part  of  Lorraine, 
164 ;  is  one  of  the  Great  Powers, 
Prussia  being  merged  in  it,  269 ; 
agrees  with  France  as  to  the  "pacific 
penetration"  of  Morocco,  273;  ob- 
jects to  the  twenty-four  hours  rule 
for  warships,  640,  and  the  three 
months  rule  for  coaling,  643 ;  es- 
tablishes with  Great  Britain  joint 
blockade  of  Venezuelan  ports,  695 ; 
difficulty  of  seriously  injuring  it  by 
blockade,  682 ;  opposes  doctrine  of 
continuous  voyages,  718. 

Ghent,  Treaty  of  (1814),  230,  569. 

Great  Britain,  signs  the  Berne  Copy- 
right Convention,  6 ;  agrees  with 
the  United  States  to  observe  the 
three  rules  of  the  Treaty  of  Wash- 
ington, 44 ;  proposes  Naval  Con- 
ference, 50 ;  an  incorporate  union, 
59,  60 ;  exercises  protectorate  over 
the  Ionian  Islands,  61,  65 ;  its 
position  in  Cyprus,  79,  80 ;  its  re- 
lations with  the  Transvaal,  84,  85, 
94,  120,  121 ;  recognizes  Liberia,  87  ; 
intervenes  in  Mexico,  126,  127,  in 
Denmark,  128,  in  Egypt,  136,  137; 
annexes  part  of  New  Guinea,  153, 
154 ;  its  claims  in  the  New  World, 
149,  156,  157;  makes  agreements 
with  Germany,  Portugal,  Italy,  and 
France  with  regard  to  spheres  of  in- 
fluence in  Africa,  174 ;  leases  a  por- 
tion of  its  East  African  sphere  of 
influence,  177-179 ;  maintains  fre- 
dom  of  Bering  Sea,  189-192;  pur- 
chases Suez  Canal  shares,  198 ;  its 
fishery  controversies  with  France 
and  the  United  States,  202-207; 
its  citizenship,  how  acquired  by 
birth,  213-215,  by  naturalization, 
216,  217 ;  protection  given  to  its 
subjects  abroad,  220,  221 ;  sets  up 
courts  in  the  Western  Pacific,  232 ; 
one  of  the  Great  Powers,  269;  breaks 
off  diplomatic  intercourse  with 


France  (1793),  301 ;  its  views  as  to 
Pacific  Blockade,  339,  340 ;  opposes 
exemption  of  private  property  from 
capture  at  sea,  494-498 ;  negotiates 
a  peace  with  Boer  leaders  in  the 
field,  568 ;  closes  cables  to  South 
Africa,  613,  614;  its  Neutrality 
Regulations,  639,  641,  643,  644 ;  its 
refusal  to  permit  ships  proceeding 
to  the  seat  of  war  to  coal  in  its  ports, 
644 ;  its  long  opposition  to  the  rule 
Free  ships,  free  goods,  661-664 ;  its 
adoption  of  it  in  1856,  665;  its 
attitude  towards  immunities  claimed 
for  convoyed  vessels,  670-673 ;  its 
views  as  to  blockade,  676-680,  686, 
687,  690-692,  695 ;  established  with 
Germany  joint  blockade  of  Vene- 
zuelan ports,  695 ;  its  doctrine  of 
conditional  contraband,  706-709. 

Great  Lakes ;  agreement  between 
Great  Britain  and  the  United  States 
to  restrict  their  naval  forces  on,  598. 

Great  Powers,  their  predominant  posi- 
tion, 46,  56,  90,  123,  136,  137,  599- 
601 ;  their  admission  of  Turkey  to 
participate  in  the  advantages  of  the 
public  law  of  Europe,  90,000 ;  their 
intervention  in  the  Lebanon,  129,000 ; 
neutralize  the  Suez  Canal,  198,  605, 
606 ;  primacy  of  the  Great  Powers 
of  Europe  in  Europe  and  in  some 
African  matters,  269-271,  276-278; 
lack  of  a  corresponding  concert  of 
Asia,  273,  274  ;  signs  of  development 
of  a  World  Concert,  274,  275,  278, 
279 ;  primacy  of  United  States  in 
America,  279-286 ;  possibility  of  an 
American  Concert,  286-288. 

Greece,  rudimentary  International  Law 
of  ancient,  18,  19 ;  authority  of 
Great  Powers  with  respect  to,  269, 
270;  suffers  Pacific  Blockade,  329, 
340 ;  agrees  to  maintain  neutrality 
of  Corfu  and  Paxo,  603. 

Gregory  VII,  Pope,  23. 

Grotius,  Hugo,  publishes  De  Jure  Belli 
ac  Pads,  7,  24 ;  great  reformer,  27, 
28;  his  history,  30,  31;  his  horror 
of  cruelty,  32 ;  his  views  as  to 
Natural  Law,  33-38 ;  his  doctrine  of 
general  consent  as  the  foundation  of 
an  instituted  law  of  nations,  38,  39 ; 
his  views  with  regard  to  state  suc- 
cession, 92 ;  the  freedom  of  the  sea, 
187,  and  resident  embassies,  296; 


INDEX 


739 


gives  definition  of  war,  331 ;  allows 
imprisonment  of  enemy  subjects 
found  in  a  state  at  the  outbreak  of 
war,  387 ;  pleads  for  temperamenta 
belli,  390,  391,  398,  431,  432,  547; 
is  doubtful  about  the  application  of 
the  jus  postliminii  to  ships,  465 ; 
condemns  poison,  554 ;  deals  briefly 
with  neutrals,  588,  590,  592  ;  grants 
to  belligerents  a  right  of  passage, 
635 ;  hints  at  blockade,  675 ;  lays 
down  a  rudimentary  law  of  contra- 
band, 698 ;  divides  commodities 
into  three  classes,  703. 

Guerilla  Troops,  510-514. 

Gyllenborg,  Count,  311. 

Hague  Conferences,  form  a  rudimen- 
tary international  legislature,  47,  48, 
52,  53,  102,  110;  their  origin  and 
objects,  47,  48,  274 ;  proposals  for 
making  them  a  regular  part  of  the 
international  order,  49,  52 ;  repre- 
sentatives of  the  Pope  refused  ad- 
mission to  them,  82. 

Hague  Conference  of  1899,  its  output, 
48,  102 ;  its  code  for  land  warfare, 
393-395 ;  forbids  refusal  of  quarter, 
396 ;  provides  for  prisoners  of  war, 
402 ;  applies  principles  of  the 
Geneva  Convention  to  maritime 
warfare,  404  ;  limits  booty,  429,  430  ; 
deals  with  guerilla  troops,  512,  and 
levies  en  masse,  515  ;  regulates  bom- 
bardments in  land  warfare,  540 ;  its 
three  Declarations,  545,  546 ;  its 
attitude  towards  devastation,  549 ; 
forbids  improper  use  of  enemy  flags 
and  uniforms,  552 ;  deals  with  flags 
of  truce,  557,  558 ;  passes  resolution 
in  favor  of  disarmament,  575  ;  pro- 
vides for  International  Commissions 
of  Enquiry,  577 ;  establishes  per- 
manent Court  of  Arbitration,  581. 

Hague  Conference  of  1907,  its  out- 
put, 49,  102  ;  its  attempt  to  estab- 
lish an  International  Prize  Court, 
110,  278;  modifies  right  to  capture 
enemy  merchantmen  found  in  a 
belligerent's  ports  at  outbreak  of 
hostilities,  338 ;  deals  with  contract 
debts,  344,  580  ;  lays  down  rules  as 
to  declarations  of  war,  345,  348,  349 ; 
declares  that  enemies  should  have 
the  right  to  sue  in  each  other's  courts, 
358-360,  425 ;  frees  crews  of  enemy 


merchantmen  from  liability  to  be 
made  prisoners  of  war,  369,  370,  399 ; 
recognizes  liability  of  camp  followers 
to  be  made  prisoners  of  war,  370, 
371 ;  deals  incompletely  with  case 
of  neutral  subjects  in  occupied  terri- 
tory, 372 ;  its  improved  but  still  in- 
complete code  for  land  warfare,  393- 
395 ;  forbids  refusal  of  quarter,  396 ; 
provides  for  good  treatment  of 
prisoners  of  war,  399-403  ;  improves 
application  of  principles  of  Geneva 
Convention  to  maritime  warfare, 
409-414,  452,  463;  limits  booty, 
429,  430 ;  defines  occupied  territory, 
434^136 ;  sets  forth  rights  of  mili- 
tary occupant  over  state  property, 
436-440,  and  over  private  property, 
440-449 ;  confers  immunity  from 
capture  on  vessels  employed  on 
religious,  scientific,  or  philanthropic 
missions,  452 ;  deals  with  cases  of 
enemy  merchantmen  and  their  car- 
goes at  the  beginning  of  a  war,  456- 
458,  463 ;  renders  inviolable  postal 
correspondence  of  enemy,  461,  462, 
727  ;  provides  for  the  establishment 
of  an  International  Prize  Court,  487 ; 
fails  to  exempt  private  property 
from  capture  at  sea,  495,  496 ;  deals 
with  guerilla  troops,  512,  and  levies 
en  masse,  515 ;  makes  incomplete 
regulations  as  to  the  conversion  of 
merchantmen  into  warships,  527 ; 
attempts  to  regulate  the  use  of  sub- 
marine mines,  533-536,  538,  543; 
regulates  bombardments  in  land  and 
sea  warfare,  540-543 ;  adhesions  to 
and  withdrawals  from  the  Declara- 
tions of  its  predecessor,  545,  546 ; 
its  attitude  towards  devastation, 
549  ;  forbids  improper  use  of  enemy 
flags  and  uniforms,  552 ;  deals  with 
flags  of  truce,  557,  558,  capitula- 
tions, 564,  and  armistices,  566 ; 
passes  resolution  in  favor  of  dis- 
armament, 575,  576;  provides  for 
improved  International  Commis- 
sions of  Enquiry,  578;  develops 
Permanent  Court  of  Arbitration, 
582 ;  strives  in  vain  to  create  a  Ju- 
dicial Arbitration  Court,  583,  584; 
fails  to  establish  so-called  compul- 
sory arbitration,  585 ;  forbids  hos- 
tilities in  neutral  territory,  608,  609 ; 
allows  passage  over  neutral  territory 


740 


INDEX 


to  the  sick  and  wounded,  622 ;  for- 
bids neutral  states  to  supply  bellig- 
erents with  warships,  arms,  etc., 
632 ;  deals  with  standard  of  vigil- 
ance due  from  neutral  governments, 
633,  634;  forbids  belligerents  to 
march  forces  across  neutral  territory 
or  set  up  prize  courts  therein,  635 ; 
imposes  on  neutrals  the  duty  of 
preventing  within  their  territory  the 
fitting  out  of  belligerent  warships, 
637,  recruitment  for  belligerent  forces, 
637,  638,  undue  stay  of  belligerent 
warships,  639,  641,  increase  of  fight- 
ing force,  642,  undue  supply  of  pro- 
visions and  fuel,  642-646,  and 
establishment  of  belligerent  infor- 
mation stations,  646,  647 ;  gives 
neutral  an  appeal  to  the  International 
Prize  Court  if  a  belligerent  makes  a 
capture  in  its  waters,  650 ;  fails  to 
formulate  the  whole  law  of  contra- 
band, but  draws  up  a  list  of  articles 
absolutely  contraband,  709. 

Hall,  W.  E.,  on  piracy,  233 ;  on  extra- 
territorial crime,  242 ;  on  cases  of 
ambiguous  sovereignty,  386 ;  on 
exemption  of  private  property  from 
capture  at  sea,  497 ;  on  proposed 
Prussian  volunteer  navy,  524 ;  on 
inconsistencies  of  states  with  regard 
to  contraband,  703 ;  on  unneutral 
service,  725,  726. 

Hanover,  61. 

Hautefeuille,  J.  B.,  101. 

Hay-Pauncefote  Treaty,  46,  47,  121, 
200,  201,  325. 

Henry  IV,  Emperor,  23. 

Hesse-Cassel,  Napoleon's  title  to  it  by 
conquest,  165. 

High  seas,  claims  to  sovereignty  over, 
185,  186  ;  freedom  of,  187. 

Hobbes,  Thomas,  40. 

Holland,  signs  Suez  Canal  Conven- 
tion, 46,  198 ;  makes  treaties  to  es- 
tablish the  rule  Free  ships,  free  goods, 
107,  659 ;  invited  to  Naval  Confer- 
ence of  London,  275 ;  resorts  to  re- 
prisals against  Venezuela,  336  ;  com- 
pletely separated  from  Luxemburg, 
601 ;  champions  immunities  of  con- 
voyed vessels,  669,  670 ;  originates 
blockade,  675-677. 

Holland,  Professor,  on  compensation 
for  private  movables  seized  by 
military  occupant,  441 ;  on  destruc- 


tion of  houses  and  farms,  449 ;    on 

classification  of  neutral  duties,  629 ; 

on  contraband,  707 ;    on  unneutral 

service,  726. 
Holy  Alliance,  135,  266. 
Holy  Roman  Empire,  22,  23,  26. 
Hooker,  Richard,  his  account  of  law, 

10. 
Hovering  Acts,  The  British,  193.     - 

Incorporate  Unions,  59,  61. 

Independence  of  states,  recognition  of, 
83-90 ;  definition  and  nature  of,  119- 
138. 

Indian  tribes  of  North  America,  63. 

Individuals,  can  hardly  be  regarded  as 
subjects  of  International  Law,  72,  73. 

Institute  of  International  Law,  its 
attempts  to  minimize  the  conflict  of 
laws,  6 ;  its  work  and  method,  100 ; 
its  views  as  to  extent  of  territorial 
waters,  143,  144,  as  to  occupation, 
159,  and  as  to  extra-territorial 
crime,  243,  244 ;  its  regulations  as 
to  political  offences,  262,  263;  its 
conditional  approval  of  Pacific  Block- 
ade, 341;  its  Military  Code,  392, 
434,  512;  its  Maritime  Code,  484, 
497 ;  its  discussions  on  submarine 
mines,  536 ;  deals  with  submarine 
cables,  614-616 ;  approves  of  con- 
tinuance on  the  high  seas  of  a  pur- 
suit begun  in  territorial  waters,  653  ; 
condemns  doctrine  of  conditional 
contraband,  707,  708 ;  adopts  doc- 
trine of  continuous  voyages,  718. 

Insurgency,  recognition  of,  237,  354- 
356. 

International  Comity,  11. 

International  Commissions  of  Enquiry, 
577,  578. 

International  Law,  definition  and 
nature  of,  1-6,  8-16 ;  its  name 
modern,  6-8;  its  method,  11-16; 
its  origin,  17 ;  its  history,  17-53 ; 
its  subjects,  54-83 ;  regards  sover- 
eignty as  territorial,  58,  139 ;  ad- 
mission of  new  subjects,  83-90 ;  its 
sources,  97-114;  its  divisions,  114— 
117;  its  rules  part  of  the  law  of 
civilized  states,  478. 

International  Law  Association,  100. 

International  Morality,  11,  41,  42,  151. 

International  Prize  Court,  50,  51,  110, 
275,  278,  374,  486-494,  583,  584,  649, 
650,  677,  712,  730,  732, 


INDEX 


741 


Internment,  622,  623. 

Intervention,  its  nature,  123,  124 ; 
when  allowable,  125-135 ;  compli- 
cation of  many  cases  of,  135-137 ; 
doctrine  of  non-intervention,  137, 
138. 

Ionian  Islands,  64,  65. 

Italy,  occupies  Rome  and  passes  Law 
of  Guarantees,  82,  83  ;  assumes  part 
of  papal  debt,  96 ;  relations  with 
Abyssinia,  170 ;  is  one  of  the  Great 
Powers,  269,  601 ;  favors  exemp- 
tion of  private  property  from  cap- 
ture at  sea,  496. 

Japan,  Korea  its  client  state,  but 
now  annexed,  67,  68  and  note  1; 
its  vicissitudes  at  Port  Arthur,  176, 
273 ;  secures  abolition  of  consular 
jurisdiction,  257 ;  is  recognized  as  a 
Great  Power,  278 ;  its  attack  on 
Russia  in  1904  not  treacherous,  346- 
348 ;  its  good  treatment  of  Russian 
prisoners,  403 ;  its  requisitions  in 
Manchuria,  444,  445 ;  adopts  con- 
tinental views  as  to  convoy,  672 ; 
adopts  doctrine  of  continuous  voy- 
ages, 718. 

Jefferson,  Thomas,  on  American  for- 
eign policy,  280  ;  on  duty  of  neutral 
states,  594 ;  on  maritime  capture, 
660,  661  ;  on  trade  in  contraband  of 
war,  699,  700. 

Jurisdiction  of  states,  over  foreigners 
within  their  Colonial  Protectorates, 
172  ;  over  persons  and  things  within 
their  territory,  212-228 ;  over  their 
ships  on  the  high  seas,  228-230; 
over  their  subjects  abroad,  230-232  ; 
over  pirates,  232-237 ;  claims  to 
jurisdiction  over  foreigners  for 
offences  committed  abroad,  242- 
244 ;  exceptions  to  ordinary  rules, 
244-258. 

Jus  civile,  7,  92. 

Jus  Gentium,  7,  38,  39,  40. 

Jus  Postliminii,  465,  476. 

Jus  Sanguinis,  214,  222. 

Jus  Soli,  214,  222. 

Karlstad,  Treaty  of,  60,  585. 

Kent,  James,  100,  193,  660. 

Kiel  Canal,  The,  201. 

King's  Chambers,  The,  193. 

Kinship,  basis  of  ancient  society,  18,  19. 

Korea,  67,  68,  565. 


Lado  Enclave,  178. 

Law,  Austin's  definition  and  analysis 

of,    10 ;    Hooker's   account   of,    10 ; 

modern     English     notion     of,     42 ; 

sources  of,  97,  98. 
Laws  of  the  Rhodians,  19. 
Leased  Territories,  175-179. 
Lebanon,  Mount,  129. 
Leges  Wisbuenses,  25. 
Leo  III,  Pope,  22. 
Levies  en  masse,  514-517. 
Liberia,  Republic  of,  87. 
Licenses  to  trade,  455,  456,  560-562. 
Lincoln,  President,  354. 
Locke,  John,  7. 
Louis  XIV,  300,  662. 
Louisiana,  163. 
Louvre,  restoration  of  works  of  art  in 

(1815),  439,  440. 
Luxemburg,  271,  301,  600,  601. 

Machiavelli,  Nicolo,  24,  28,  29, 115, 590. 

MacMahon,  Marshal,  110,  155. 

Mails  and    mail  steamers,  immunities 

of,  459-462. 
Manning,  William,  100. 
Maritime  Ceremonials,  293,  294. 
Marshall,  Chief  Justice,  on  jurisdiction 

over   public   ships  in   foreign   ports, 

248. 

Mediation,  124  ;  special  mediation,  579. 
Mexico,   88,    126,    127,   281,   288,   568, 

664,  665,  685. 
Michigan,  Lake,  209. 
Monroe  Doctrine,  132,  280-285. 
Montenegro,  89,  102,  271. 
Municipal  Law,  14. 

Napoleon  Bonaparte,  122,  165,  327, 
478,  561. 

Napoleon,  Louis,  131. 

Natal,  154. 

Native  states  of  India,  63. 

Native  tribes,  treatment  of,  160,  161. 

Natural  Law,  33-42. 

Naturalization,  215-222. 

Naval  Conference  of  London,  50,  51, 
374,  380,  382,  493,  527,  532,  584, 
672,  692,  710,  718,  720,  726-728.  _ 

Neutral  Individuals,  their  position 
with  regard  to  belligerent  states, 
588-590 ;  may  lend  money  to  them, 
631  ;  growth  of  neutral  commerce, 
655,  656 ;  nature  of  restrictions  on  it, 
657-669 ;  forbidden  services,  72S.-732. 

Neutral  states,  their  position  with  re- 


742 


INDEX 


gard  to  belligerent  states,  588,  590- 
596 ;  duties  of  belligerent  states 
towards  them,  608-611,  617,  618, 
622-626 ;  their  duties  towards  bellig- 
erent states  —  duties  of  abstention, 
630-633,  duties  of  prevention,  633- 
647,  duties  of  acquiescence,  648,  649, 
duties  of  restoration,  649-651,  duties 
of  reparation,  651—652  ;  their  means 
of  protecting  their  neutrality,  652- 
654. 

Neutrality,  definition  of,  587 ;  nature 
of  587,  588 ;  history  and  develop- 
ment of,  585-596;  kinds  of,  956; 
divisions  of  law  of,  606,  607. 

Neutralization,  meaning  of,  596-598 ; 
neutralized  states,  78,  79,  598-601 ; 
neutralized  provinces,  601-605  ;  case 
of  territories  in  the  conventional 
basin  of  the  Congo,  603-605 ;  neu- 
tralized waterways,  605,  606. 

Newfoundland  Fisheries,  203-207,  586. 

New  Guinea,  153-155. 

New  Hebrides,  181. 

Non-combatants,  their  treatment  in 
war,  415-422. 

North  Sea  Commission,  578. 

North  Sea  Fisheries  Convention,  142, 
202. 

Norway,  60,  89,  585. 

Notification  of  Blockade,  686-688. 

Nyassaland,  74. 

Occupation,  military,  372,  431-449. 

Occupation,  title  by,  111,  148-161. 

Oleron,  Laws  of,  25. 

Ontario,  Lake,  141. 

Oppenheim,  Professor,   102,   125,  433, 

449,  726. 

Orange  Free  State,  120. 
Oregon      Boundary      Question,      156, 

157. 
Ortolan,  E.,  on  jurisdiction  over  public 

ships  in  foreign  ports,    249 ;    on  res 

ancipitis  usus,  707. 

Pacific  Blockade,  339-343. 
Panama  Canal,  47,  200-202,  325,  605. 
Panama,  Congress  of,  285. 
Pan-American   movement,    The,    285- 

287. 

Papacy,  The,  23,  24,  82,  83. 
Paris,  Conference  of  (1856),  45. 
Paris,   Treaty  of  (1856),  45,  84,   122, 

209,  360,  361,  664. 
Paris,  Treaty  of  (1898),  66. 


Part  sovereign  states,  54,  61-70,  79. 

Patron  states,  65. 

Peace,  legal  effects  of  conclusion  of, 
569-572. 

Personal  Unions,  59-61. 

Phillimore,  Sir  Robert,  100. 

Philippines,  164. 

Piracy,  by  whom  justifiable,  232 ;  its 
nature,  233-237 ;  distinction  be- 
tween piracy  jure  gentium  and 
piracy  by  municipal  law,  237 ; 
search  of  suspected  vessels,  471. 

Poison,  not  to  be  used  in  war,  554, 
555. 

Poland,  Partitions  of,  132,  568. 

Political  offenders,  250-252,  262-266. 

Portsmouth  (U.S.A.),  Treaty  of,  176, 
565. 

Portugal,  110,  149,  155,  186,  619,  620, 
647. 

Precedence  of  states  and  sovereigns, 
291,  292. 

Prescription,  title  by,  166,  167. 

Prisoners  of  war,  crews  of  enemy 
merchantmen  free  on  conditions,  369, 
370 ;  followers  of  enemy  army 
liable,  370,  371 ;  historical  account 
of  treatment,  397,  398 ;  modern 
rules  with  regard  to,  399-403. 

Private  International  Law,  5,  6. 

Privateers,  521-523. 

Prize  Courts,  their  nature,  108,  476- 
479  ;  national  responsibility  for  their 
decisions,  479 ;  their  jurisdiction, 
480 ;  their  procedure,  480,  481. 

Projectiles,  543-547. 

Protectorates,  64,  77,  168;  their 
various  kinds,  168-173.  , 

Prussia,  its  treaty  of  1785  with  the 
United  States,  106 ;  passes  male 
population  through  its  army,  122 ; 
attempts  to  establish  a  volunteer 
navy,  523. 

Pufendorff,  Samuel,  7,  36,  40. 

Quarter,  396,  397. 
Queensland,  153. 

Ransom  Bills,  463,  464. 

Ratification  of  treaties,  its  effect,  324 ; 

whether  states  are  bound  to  ratify, 

324,  325. 

Real  Unions,  59-61. 
Reformation,  The,  27,  119,  288,  658. 
Renaissance,  The,  27,  288,  295,  658. 
Renault,    Professor   Louis,    his   report 


INDEX 


743 


on  the  International  Prize  Court 
Convention,  491 ;  his  report  on  the 
whole  work  of  the  Naval  Conference 
of  London,  720;  was  Plenipotentiary 
of  France  at  Naval  Conference,  720. 

Reprisals,  334-344. 

Requisitions,  443-445. 

Ridley,  Bishop,  7. 

Rivers,  Right  to  navigate,  207-211. 

Roman  Empire,  The,  20-23,  25. 

Roman  Law,  6,  22,  25,  27,  33,  92,  141, 
149,  180,  185. 

Roman  Republic,  17-20. 

Roosevelt,  President,  gives  up  to 
Russia  the  initiative  in  calling 
Second  Hague  Conference,  57 ;  his 
message  on  the  Santo  Domingo 
question,  284 ;  advocates  League  of 
Peace,  576. 

Roumania,  45,  89,  102,  164,  271. 

Rule  of  War  of  1756,  382,  668;  its 
development  in  1793,  717; 

Russia,  takes  back  Treaty  of  San 
Stefano,  56 ;  cedes  part  of  Sakhalin 
to  Japan,  96 ;  enters  into  engage- 
ments as  to  Black  Sea,  122 ;  is  re- 
leased from  them,  123 ;  intervenes 
in  Hungary,  134  ;  sells  Alaska,  163  ; 
recovers  Bessarabia,  164 ;  claims 
Bering  Sea,  187,  188;  evades  re- 
strictions on  passage  of  Dardanelles 
and  Bosphorus,  197,  234,  527;  re- 
leases Malacca,  234,  528 ;  is  one  of 
the  Great  Powers,  269 ;  expels 
Japanese  (1904),  388,  389;  acquires 
a  volunteer  fleet,  524,  525 ;  its  in- 
consistency as  regards  the  character 
as  contraband  or  non-contraband  of 
provisions  and  coal,  704,  705 ; 
adopts  doctrine  of  continuous  voy- 
ages, 718. 

Ryswick,  Conference  of,  289. 

Safe-conducts,  559,  560. 

Sakhalin,  Island  of,  96,  516. 

Salvage,  466^68. 

San  Stefano,  Treaty  of,  56. 

Santa  Lucia,  154. 

Savage  Troops,  517,  518. 

Savoy,  ceded  to  France,  131 ;  a  neu- 
tralized province,  601-603. 

Schleswig-Holstein  Question,  137. 

Search,  Right  of,  238,  240,  468-174. 

Servia,  45,  89,  102,  271,  302. 

Ships,  national  character  of,  373,  450, 
451. 


Ships'  Papers,  474,  475. 

Silesian  Loan  Controversy,  111,  428, 
663.  , 

Slave  Trade,  not  piracy  jure  gentium, 
237,  238 ;  treaties  against,  238-241. 

Soudan,  The,  81,  178-180. 

Sound  Dues,  194,  195. 

Sovereign  States,  54-61,  139. 

Spain,  signs  Suez  Canal  Convention, 
46,  198 ;  intervenes  in  Mexico,  126, 
127 ;  its  territorial  claims  in  the 
New  World,  148,  149,  156,  157,  186; 
receives  Louisiana  from  France,  163  ; 
cedes  Philippines  to  United  States, 
164 ;  invited  to  Naval  Conference 
of  London,  275 ;  adheres  to  Declara- 
tion of  Paris  in  1907,  665. 

Spheres  of  Influence,  173-175. 

Spies,  519-521. 

Sponsions,  563. 

Staateribund,  68-70. 

State,  definition  of,  55 ;  continuity  of 
existence  of,  90-92 ;  state  succes- 
sion, 92-96 ;  territorial  possessions 
of,  139-146. 

Story,  Judge,  his  eminence  as  a  Prize 
Court  Judge,  109 ;  his  views  on 
neutral  jurisdiction  over  belligerent 
captures,  654. 

Stowell,  Lord  (Sir  W.  Scott),  his 
eminence  as  a  Prize  Court  Judge, 
109  ;  introduces  doctrine  of  continu- 
ous voyages,  109 ;  uses  French 
Marine  Ordinance  of  1681,  113;  on 
alluvium,  146 ;  on  case  of  John 
Brown,  247 ;  on  effect  of  hostile 
embargo,  338 ;  on  domicile,  378, 
379;  on  neutral  goods  found  on 
board  an  armed  enemy  merchant- 
man, 383  ;  on  cartel-ships,  453 ;  on 
capture  of  enemy  fishing-boats,  454  ; 
on  salvage,  467 ;  on  proximate  acts 
of  war,  609 ;  on  convoy,  670,  671 ; 
on  the  law  of  blockade,  683 ;  on 
continuous  voyages,  717;  on  the 
carriage  of  contraband,  721 ;  on  car- 
riage of  warlike  despatches,  724,  725. 

Stratagems,  551-533. 
Suarez,  Francisco,  30. 
Submarine  cables,  442,  612-616. 
Submarine  mines,  532-539,  686. 
Suez  Canal,  46,  47,  198-201,  605,  606. 
Suzerainty,  64,  167. 
Sweden,  60,  89,  185,  432,  585,  592,  669, 
698. 


744 


INDEX 


Switzerland,  68,  70,  91,  104,  598,  599, 
601,  602,  623  638. 

Terceira  Expedition,  620,  621. 

Texas,  88,  91. 

Thirty  Years'  War,  32,  43,  415,  431. 

Titles  of  sovereigns,  292,  293. 

Transfer  of  enemy  vessels  to  neutral 
flags,  380,  381. 

Transvaal,  The,  84,  85,  91,  93,  120, 
350,  388. 

Treaties,  those  that  make  law,  43-51 ; 
their  interpretation  and  obligation, 
326-330 ;  effect  of  war  on,  360-365. 

Tribonian,  39. 

Triple  Alliance  (1668),  122. 

Truces,  564,  565. 

Turkey,  signs  Suez  Canal  Convention, 
46,  198 ;  suzerain  of  Bulgaria  (1878- 
1909),  64,  65,  of  Roumania  and 
Servia  (1856-1878),  65,  66,  and  of 
Crete,  80 ;  its  position  in  Cyprus, 
80;  its  relations  to  Egypt,  80-82; 
received  into  the  family  of  nations, 
90,  271 ;  enters  into  engagements 
as  to  Black  Sea,  122 ;  is  released 
from  them,  123  ;  has  certain  powers 
over  Dardanelles  and  Bosphorus, 
196 ;  is  under  authority  of  the  Great 
Powers,  270,  271 ;  loses  Bosnia  and 
Herzegovina,  329,  330. 

Twiss,  Sir  Travers,  157,  194,  524. 

Ulpian,  39. 

United  States,  agrees  with  Great 
Britain  to  observe  the  three  rules 
of  the  treaty  of  Washington,  44 ;  a 
Federal  Union,  60 ;  its  dealings  with 
Indian  tribes,  63 ;  Cuba  its  client 
state,  66,  67,  96 ;  its  independence 
recognized  by  France,  88,  89  ;  recog- 
nizes independence  of  Texas,  88,  90, 
of  Panama,  88,  89,  of  the  Congo 
Free  State,  89 ;  insists  on  rights 
and  duties  of  neutrality,  111,  305, 
477,  593-596,  630;  its  instructions 
for  the  guidance  of  its  armies,  113, 
392,  434,  516  ;  a  position  of  primacy 
in  America  assumed  by  it,  123 ;  its 
intervention  in  Cuba  in  1906,  126, 
128 ;  puts  an  end  to  French  inter- 
vention in  Mexico,  126,  127,  568; 
its  boundary  questions,  156,  157 ; 
signs  Final  Act  of  the  West  African 
Conference,  159 ;  purchases  Alaska, 
163 ;  obtains  Philippines  from 


Spain,  164 ;  claims  Bering  Sea  Seal 
fisheries,  189-192 ;  assists  in  abolishing 
the  Sound  Dues,  195 ;  controls  Panama 
Canal,  200-202,  605;  its  contro- 
versies with  Great  Britain  as  to 
fisheries,  203-207 ;  its  citizenship, 
how  acquired  by  birth,  213-215,  by 
naturalization,  215-217 ;  the  pro- 
tection given  to  its  citizens  abroad, 
217-221 ;  its  controversy  with  Great 
Britain  as  to  impressment  of  sea- 
men, 229,  230 ;  its  position  as  a 
Great  Power,  271-275,  278-288; 
formulates  and  develops  the  Monroe 
Doctrine,  280-285;  heads  the  Pan- 
American  movement,  285-288 ;  its 
difficulty  with  regard  to  the  proposed 
International  Prize  Court,  492,  677 ; 
its  proposal  to  exempt  private 
property  from  capture  at  sea,  494- 
498 ;  its  refusal  to  sign  the  Declara- 
tion of  Paris,  522 ;  its  attempts  to 
create  a  High  Court  of  Arbitral 
Justice,  582-584 ;  deals  with  sub- 
marine cables,  614-616 ;  makes 
reparation  for  seizure  of  the  Florida, 
626 ;  its  attitude  towards  the  rule 
Free  ships,  free  goods,  659-661,  665, 
666 ;  its  blockade  of  the  coast  of  the 
Southern  Confederacy,  680-682,  685. 

Unneutral  service,  its  nature,  724,  726, 
727;  the  differences  between  it  and 
contraband,  724,  725;  its  name,  725, 
726 ;  lesser  offences  and  their  penalty, 
728-730;  greater  offences  and  their 
penalty,  730-732. 

Uti  possidetis,  principle  of,  166,  571, 
572. 

Utrecht,  Peace  of,  131. 

Vattel,  Emerich,  his  theory  of  a  state 
of  nature,  36,  and  a  law  of  nations, 
40-42 ;  on  ravaging,  43 ;  on  neu- 
trality, 99  ;  on  discovery  and  occu- 
pation, 154,  160  ;  on  classification  of 
diplomatic  ministers,  297,  298 ;  on 
interpretation  of  treaties,  326 ;  on 
sequestration,  424 ;  on  respective 
rights  of  military  occupant  and 
sovereign,  432,  433  ;  on  devastation, 
547,  548 ;  on  neutrals,  589,  591 ;  on 
belligerent  levies  in  neutral  territory, 
638. 

Venezuela,  91,  282,  283,  314,  336,  342, 
695. 

Vereeniging,  Peace  of,  85,  444. 


INDEX 


745 


Vienna,  Congress  of,  208,  298. 
Vienna,  Peace  of,  131,  425,  601. 
Vladivostock,  484,  525. 
Volunteer  Navy,  523-526. 

War,  definition  of,  331-334;  distin- 
guished from  other  acts  of  force, 
334-343  ;  declaration  of,  345-351 ; 
legal  effects  of  outbreak  of,  356-365  ; 
doctrine  that  it  is  a  school  of  manly 
virtue,  572-573. 

Washington,  George,  his  firmness  with 
regard  to  M.  Genet,  305,  477,  594; 
his  efforts  to  maintain  an  honest 
neutrality,  593-595. 

Washington,  Treaty  of  (1871),  44,  105, 
205,  618,  633,  652,  689. 

Webster,  Daniel,  on  protection  of 
naturalized  citizens,  218 ;  on  im- 
pressment of  British  seamen  on 
board  American  vessels,  230 ;  on 
violations  of  neutral  territory,  610. 


West  African  Conference,  85,  86,  103, 
111,  159,  171,  172,  210,  272,  603, 
604. 

Westlake,  Professor,  on  droit  and  recht, 
42 ;  on  territorial  sovereignty, 
139;  on  colonial  protectorates,  171 ; 
on  extra-territorial  crime,  242 ;  on 
political  offences,  263,  264 ;  on 
regulation  of  reprisals,  344,  351 ; 
on  military  necessity,  394 ;  on 
tha  offence  of  breaking  blockade, 
678. 

Westphalia,  Peace  of,  120,  131. 

Wheaton,  Henry,  statesman  and  pub- 
licist, 100 ;  on  the  divisions  of  In- 
ternational Law,  114;  on  protection 
of  naturalized  citizens,  218 ;  on 
extra-territorial  crime,  242. 

Zanzibar,  169,  170,  239,  240,  341. 
Zouch,  Richard,  8. 
Zuyder  Zee,  145. 


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